In Sunday’s New York Times, Stephanie Coontz, director of public education for an outfit called the Council on Contemporary Families (which advocates for non-traditional families), administered a pop quiz on marriage. Maggie Gallagher, president of the Institute for Marriage and Public Policy, offers the iMAPP marriage quiz, below:

The iMAPP Pop Quiz on Marriage

1. True or False: Young women today are more eager to marry than young men. True. According to the Monitoring the Future Survey, 82 percent of high school seniors who are girls said having a good marriage and family life was “extremely” important to them, compared to 70 percent of high-school seniors who are boys. (National Marriage Project, State of Our Unions, 2005)

2. True or False: College students today are more likely to approve of casual, uncommitted sex than college students 20 years ago.

False. Between 1980 and 2000, the proportion of students in the UCLA College Freshmen survey who agreed that”if two people really like each other, it’s all right for them to have sex even if they have known each other for only a very short time” dropped from 48 percent to 42 percent.

3. True or False: Marriages are much more likely to end in divorce today than they were 20 years ago.

False. The overall divorce rate peaked around 1980 and appears to have declined modestly since then. Divorce rates per 1,000 marriages were 22.6 in 1980, 20.9 in 1990, and 18.8 in 2000(latest data: 2004: 17.7). (National Marriage Project, State of Our Unions, 2005.) According to a recent study divorce rates among the college-educated have fallen the most dramatically since the 1970s, while rates among less-educated Americans may have risen slightly. Between the early ‘70s and the early ‘90s the proportion of women with college diplomas whose marriages dissolved in the first ten years plummeted from 24.3 percent to 16.7 percent. Divorce rates among those with less than a college degree, meanwhile, increased slightly from 33.7 percent to 35.7 percent.

4. True or False: Divorce rates are much higher today than 40 years ago.

Too true. In 2004, the number of divorces per 1000 married women was 17.7; in 1960 it was 9.2. (National Marriage Project, State of Our Unions, 2005)

5. True or False. Cohabitation has skyrocketed to historically unprecedented levels in the U.S.

True. According to the National Marriage Project, since 1960 the number of unmarried couples in America increased by nearly 1,200 percent. (National Marriage Project, State of Our Unions, 2005. About 40 percent of births out of wedlock in 2002 were to cohabiting mothers. These children are three times as likely as children born to married couples to see their parents part. (Wendy D. Manning et al, 2004, “The Relative Stability of Cohabiting and Marital Unions for Children,” Population Research and Policy Review, 23:135ff.)

6. True or False: The vast majority of today’s mothers don’t want a full-time career.

True. In a 2005 nationally-representative survey of 2000 mothers, just 16 percent prefer a full-time job.

7. True or False: The proportion of babies born outside of marriage has doubled since 1960.

False. The proportion of out-of-wedlock births has sextupled since 1960. It has doubled since just 1980. At this rate, by 2040, 122 percent of all babies will be born out of wedlock. (That’s a joke.) Out-of-wedlock birth rates were 5.3 percent in 1960, 10.7 percent in 1970, 18.4 percent in 1980, 28 percent in 1990, and 33.2 percent in 2000. (The latest statistics are 34.6 percent in 2003 and 35.7 percent in 2004.)

8. True or False: Men and women are just about equally likely to say they are happily married.

More true than false. Women are less likely to report being very happily married, but only slightly. According to GSS survey, in the early 1970s, 69.6 percent of husbands and 68.6 percent of wives described their marriage as “very happy.” By the early 2000s, it was 64.6 percent of husbands and 60.3 percent of wives.

9. True or False: “Philosophers and theologians have always believed that strong marital commitments form the foundation of a virtuous society”.

Obviously false. Plato, Marx, and Rousseau are just a few of the many philosophers who have targeted marriage and the family for destruction, preferring that the state raise children. But Christian philosophers and advocates of political liberty have long understood that strong marital bonds protect children and women, civilize men, benefit society, and foster political liberty and limited government. (Medieval theologians, it is true, looked askance at “excessive” sexual passion, even directed at one’s wife, but they strongly approved of both love and marital commitment, acknowledging marriage as a sacramental bond.)

10. True or False: Divorce impoverishes women and children.

True. The majority of children raised outside of marriage experience poverty. As many as one-third of divorced women slip below the poverty level after divorce. (Bradford Wilcox et al, 2005, Why Marriage Matters: 26 Conclusions from the Social Sciences, NY: Institute for American Values.)

11. True or False: Divorce hurts kids.

True. Divorce approximately doubles the risk of long-term permanent damage to children (E. Mavis Hetherington and John Kelly, 2002, For Better or For Worse: Divorce Reconsidered). And even kids who are not damaged are often hurt. In Between Two Worlds: The Inner Lives of Children of Divorce, Elizabeth Marquardt reports the results of a nationally representative survey: 64 percent of children of divorce agreed that “it was stressful in my family,” compared to just 25 percent of children raised in intact married homes. Children of divorce were four times as likely as children from intact families to agree, “I love my father, but I don’t respect him.” They are also almost eight times as likely to disagree with the statement “My father taught me clearly the difference between right and wrong.” Fifty-one percent of children of divorce agree that “There are things my father has done that I find hard to forgive,” compared to 19 percent of children in intact families. Forty-four percent of children of divorce agree that “I was alone a lot as a child,” compared to 14 percent of children from intact families. Only 44 percent of children of divorce strongly agree that “I generally felt emotionally safe” as a child, compared to 79 percent of adults who were children in intact families.

12. True or False: “The preferred form of marriage through the ages has been between one man and one woman” (taken directly from Coontz’s quiz).

True. Four out of five of the great religions that gave birth to large complex civilizations (encompassing the vast majority of people ever born) have had monogamous marriage systems. And while polygamy has been common in many tribal societies, almost every known society throughout the ages considers marriage a male-female sexual bond with procreative implications. “The unique trait of what is commonly called marriage is social recognition and approval . . . of a couple’s engaging in sexual intercourse and bearing and rearing offspring” (Kingsley Davis (ed.), Contemporary Marriage: Comparative Perspectives on a Changing Institution). Professors Margo Wilson and Martin Daly write in Evolutionary Psychology, Public Policy and Personal Decisions:

Marriage is a universal social institution, albeit with myriad variations in social and cultural details. A review of the cross-cultural diversity in marital arrangements reveals certain common themes: some degree of mutual obligation between husband and wife, a right of sexual access (often but not necessarily exclusive), an expectation that the relationships will persist (although not necessarily for a lifetime), some cooperative investment in offspring, and some sort of recognition of the status of the couple’s children. The marital alliance is fundamentally a reproductive alliance.

13. True or False: Religion has no effect on divorce rates.

False, false, false. Mere religious affiliation may not reduce divorce, but religious practice clearly does. One longitudinal analysis of the National Survey of Family Growth found that couples who attended church as often as once a month had divorce rates less than half that of couples who attended church once a year or less. Similarly, a recent study of the National Survey of Families and Households found that marriage in which both couples attend church regularly have the lowest divorce risk (David B. Larson and James P. Swyers, 2002, “Does Religion and Spirituality Contribute to Marital and Individual Health?” in John Wall et al (eds.) Marriage, Health and the Professions).

— Maggie Gallagher is president of the Institute for Marriage and Public Policy and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.

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>>Fanatical Swedish Feminists: The stuff about chopping men to bits might have been a bit much. (National Review Online, 060222)

[KH: how same sex marriage will ultimately destroy all marriages, but for now, polygamy is next]

Stanley Kurtz

With Congress about to take up the Federal Marriage Amendment, let’s travel a little and take a look at how marriage is faring in Scandinavia — specifically Sweden, famous as a bellwether of family change. In 1987, Sweden offered same-sex couples the first domestic partnership package in Europe. This led Denmark in 1989, then Norway in 1993, to set up a more elaborate system of “registered partnerships” (with nearly all the rights of marriage), which Sweden adopted in 1994. I discussed some of these changes in The End of Marriage in Scandinavia February 2004 piece. yet much has happened since then.

The years 2004 and 2005 saw the growth, collapse, and apparent rebirth of a campaign to abolish Swedish marriage and replace it with a gender-neutral partnership system that allows for multi-partner relationships. This story of the drive to abolish marriage in Sweden is bound up with one of the most bizarre and fascinating political tales of recent years: the rise and burnout of Sweden’s first political party built entirely around women’s issues: the Feminist Initiative (FI). (See “The definitive guide to equality in Sweden.”)

Youthful Polyamory

Our adventure begins in March of 2004, when one of the few conservative papers in Sweden, Nya Dagen, reported that a local youth wing of Sweden’s governing Social Democrat party had endorsed the idea of replacing marriage with a gender-neutral, multi-partner-friendly marriage system. Around the same time, the youth wing of Sweden’s Green party called for formal recognition of polyamorous (i.e. multi-partner) relationships. Editorializing against these moves, Nya Dagen pointed out that the leaders of these youth parties would someday be sitting in parliament. Nya Dagen reminded its readers that the public had been promised no further changes in the family after the initial same-sex partnership legislation in 1987, and again after Registered Partnerships in 1994. Don’t believe it! said Nya Dagen. Unless the country reverses course, Sweden will surely slip further down the slope. That editorial prompted an angry letter from, Einar Westergaard, a spokesperson for the Green party’s youth wing:

We are trying to achieve a sexual revolution and counteract the hierarchy that gives heterosexuality privileges and represses other forms of social life....The two-person standard is part of society’s heterosexual norm...(whereas it is our) aspiration to make the laws as norm-free as possible....Marriage is not the key to homosexual, bisexual, and transgender liberation. What’s essential is the battle for norm-free, sex-neutral legislation, and a society without heterosexual norms.”

Certainly, a pro-polyamory movement among the youth divisions of Sweden’s ruling left-wing coalition bodes ill for the future. Yet the marriage-abolition bandwagon got rolling a whole lot sooner than Nya Dagen could have guessed. It merely took a little help from Sweden’s feminists.

Feminist Pressure

Only a few months after that first pro-polyamory upsurge, in the summer of 2004, Sweden’s feminists grew restive with the apparent failure of their attempt to impose gender quotas on the nation’s businesses. In 2002, Equality Minister, Margareta Winberg, had set a much publicized target of 25-percent female representation on the boards of Sweden’s publicly listed companies. Winberg threatened government-imposed quotas if this “goal” was not reached by 2004. With gender quotas already in place in Norway, Sweden’s businesses had to take the threat seriously. Yet by 2004, Sweden’s companies were nowhere near compliance, with women making up only 11.6 percent of board members. What’s more, a majority of parliament opposed business gender quotas. True, the Left Party and Green party supported quotas, but the key to the governing left-wing coalition, the Social Democratic party, was deeply divided over the proposal. So it looked like a major defeat for Sweden’s powerful feminists was in the offing. They’d promised to impose business gender quotas by 2004 if the “goals” weren’t met, yet Sweden’s feminists seemed unable to carry through on their threat.

To break the logjam, Gudrun Schyman, a charismatic member, and former head, of Sweden’s Left party, decided to form a new political party called the “Feminist Initiative.” As the West’s most secular country, where changes in family structure and gender roles are most “advanced,” Sweden is the center of world feminism. If Sweden’s many feminists could be drawn into a single party, reasoned Schyman, the governing Social Democrats might be forced to bring them into its coalition. The price would be Social Democrat support for a package of feminist legislation, including business gender quotas. This strategy risked splintering the vote on the left and turning the country over to a coalition of social moderates. Yet if a feminist party could draw more than the four-percent minimum of the votes required for parliamentary representation, prospects for a brave new world of feminist legislation were strong.

Feminist Shopping List

A few months before Schyman bolted the Left party to form the Feminist Initiative, she had stirred up controversy by proposing a “man tax:” a tax leveled only on men, to help pay for the government’s extensive array of feminist-run shelters for battered women. Schyman’s “man tax” idea stirred outrage from more moderate commentators like Liza Marklund: “To declare that all men are guilty of all rapes, that all men are guilty of violence against women — that’s not just offensive and wrong; if the purpose is to get anywhere with this issue it’s just plain stupid.”

Marklund’s comments proved prophetic. Yet the man-bashing had to reach an unheard of pitch before the reaction finally began. So long as the “man tax” and business-board quotas were the issue, Schyman’s promise to “break down the patriarchal order of power” through FI (the Feminist Initiative) enjoyed wide support. Early polling showed that five percent of the public would “definitely” vote for FI, and an amazing 20-25 percent said they would at least consider supporting FI. Numbers like that could easily have brought business-board quotas, a man-tax, and many other feminist proposals into law.

Even during this early period of popular support, the Feminist Initiative floated some remarkably radical ideas. FI planned to change Sweden’s rape laws by requiring men to ask women permission for sex (something like the famous rules of sexual engagement at Antioch College). There was also a call for “comparable worth” legislation, to equalize pay between professions dominated by men (e.g., truck drivers) and women (e.g., phone operators).

A central plank of FI’s platform was forcing fathers to take as much time off for childcare as mothers. Most of the one-year leave allowed to Swedish parents can be taken by either the mother, the father, or both. Determined to eliminate all differences between men and women, Sweden’s feminist wanted to assign half of this leave to fathers alone. That would force fathers to spend as much time on early child-rearing as mothers, or would push children into the day care system at six months of age. (Most Swedish children enter state-run day care at age one.) Either alternative would strike a huge blow against traditional family roles. Sweden’s feminists also hoped to promote androgyny through gender quotas for day care workers, and through attempts to suppress the gender-specific behavior of boys and girls in day care.

Feminist Gains

Schyman’s strategy quickly bore fruit. To stem the tide of feminist deserters, left-leaning parties put forward proposals modeled on FI’s platform. The governing Social Democrats recommended an “equality bonus” for families that took the same amount of paternal and maternal leave.

And as one of many concessions to FI, the government agreed to consider adopting formal same-sex marriage (instead of “registered partnerships”). Together, the three left-coalition parties (the Social Democrats, the Left Party, and the Greens) decided to give lesbian couples the right to receive artificial insemination from the government’s health service. This eliminated one of the sole remaining differences between registered partnerships and marriage.

Lesbian couples were given the benefit of government-supported insemination regardless of whether they were registered partners or simply cohabiting. That is quite the opposite of what the “conservative case” for same-sex marriage would predict, of course. The government was treating registered partnership on a par with mere cohabitation as a setting for parenthood. The government also agreed that both members of the lesbian couple would be recognized as a child’s mother, thereby creating potential claims of triple parenthood and contributing to the notion that fathers are dispensable. The new regulations on lesbian insemination came into effect in July of 2005, along with a number of other measures designed to promote androgyny (for example, a measure that prohibits businesses from charging women more than men for the “same” service — say, a haircut).

By spring of 2005, the Feminist Initiative was riding high. The new cultural mood emboldened Sweden’s feminists both in and out of government. As a result of feminist threats, for example, the Miss Sweden pageant was canceled (for the first time since 1952).

Men Are Animals

In the midst of all this feminist success, trouble struck with the broadcast of a televised documentary called The Gender War. This close-up look at Sweden’s feminist movement exposed a degree of radicalism that shocked even Sweden’s socially liberal public.

The documentary featured prominent feminist academic and activist, Eva Lundgren, claiming that half of all Swedish women are victims of male violence. Lundgren went on to assert that a network of male Satanist groups had carried out hundreds of ritual baby murders in Sweden. (A formal inquiry by Uppsala University has since discredited both claims.) Another segment of the documentary featured Ireen von Wachenfeldt, chair of the government’s women’s shelters. Von Wachenfeldt’s remarks set off what soon became known as the “men are animals” controversy.

Under Von Wachenfeldt, the government’s women’s shelter network had printed excerpts from the “SCUM Manifesto” (Society for Cutting Up Men), penned by a radical feminist in the late 1960s. The SCUM Manifesto urges women to “destroy the male sex” by using modern science to insure that only female children are born. SCUM goes on to say: “To call a man an animal is to flatter him: he’s a machine, a walking dildo.” Asked by the film-maker if she agreed, Von Wachenfeldt said, “Yes, man is an animal. Don’t you think so?”

Lundgren and Von Wachenfeldt’s televised statements set off shock waves in a Sweden perhaps soon to be governed by a coalition that would include FI. After all, the “man tax” would fund a shelter system run by a woman who appeared to despise men. The government’s new Equality Minister, Jens Orback, seized on the controversy to criticize Von Wachenfeldt’s “separatist” decision not to work with or employ men in government shelters.

Thrown off-balance by the controversy, the Feminist Initiative tried to find a “male feminist” to place on its governing board. Unfortunately, their chosen male candidate declined the honor.

Dogged by the “men are animals” controversy through the spring and summer, the Feminist Initiative headed into its critical September 2005 convention determined to emerge with a winning platform. Yet the convention saw divisions emerge. After a bitter power-struggle, several “moderates” resigned from FI’s board. They complained that a “broad-based” program (focused, say, on business quotas and compulsory paternity leave) was being pushed aside by a radical coalition dominated by homosexuals, bisexuals, and the transgendered. One erstwhile FI board member said she’d been “bullied for being a middle-class heterosexual.”

Determined to transcend “patriarchal norms,” FI decided against having official leaders. Yet now the purged “moderate” feminists complained of a “democratic deficit” on the board. The Feminist Initiative had become “much worse” than the traditional patriarchal organizations it was meant to replace, said one. In other words, “man tax” advocate and de facto leader, Gudrun Schyman, was in control, purging the “moderates” (themselves quite radical by American standards) and siding with the radicals. The entertainment at the conference further radicalized the party’s image, particularly the rapturous applause for a song that went, “F***ing man, we’re going to chop you to bits.”

Abolishing Marriage

FI’s victorious radical faction was led by Tiina Rosenberg, a feminist professor who made a badge of her lesbianism. Rosenberg raised public hackles for reportedly calling women who sleep with men “traitors to their gender.” And shortly after her triumph at the convention, Rosenberg announced the Feminist Initiative’s new proposal: the abolition of marriage and its replacement by a system of gender-neutral partnership legislation that would allow for multiple partners. Like the youth parties the previous year, Rosenberg touted the proposal as freeing the family from “heterosexual norms.” “The history of marriage is not about love and living together,” she said, “it’s about ownership.”

By this time, however, FI’s poll numbers were collapsing from the combined effect of the “men are animals” controversy and the man-bashing at the FI conference. The Left party (which Gudrun Schyman had bolted to start FI) made a bid for FI supporters by embracing the idea of a gender-neutral, polyamory-friendly partnership system as an alternative to marriage. Within a month of the now infamous FI convention, Tiina Rosenberg was forced to resign from the party. Schyman blamed “homophobia” for the attacks on Rosenberg. In the meantime, Prime Minister Goran Persson announced that, if necessary, he would be willing to join in a coalition government with the Feminist Initiative, and would in fact prefer that to a coalition with a new and more conservative Euroskeptic party. “FI is further to the left,” said Persson. “We could come to agreement on many of their demands.

But with the collapse of the Feminist Initiative’s popular support in the wake of the man-bashing controversies, it looks as though FI now has little prospect of entering a governing coalition. True, the parties of the left will likely continue to co-opt parts of FI’s platform, as a way of mollifying Sweden’s large and restless feminist constituency. Yet, for now, the prospect of an independent feminist political party seems to have passed.

Lessons

Sweden has obviously begun to slide “down the slope.” Were it not for the supposedly final same-sex partnership initiatives of 1987 and 1994, Sweden would not now be facing calls for the abolition of marriage and the recognition of polyamorous partnerships. And if that man-bashing hadn’t been exposed by a documentary, FI might still be riding high. The remarkable thing is that, well before the man-bashing, when FI was talking about radical ideas like a “man tax” and compulsory paternal leave, the party was considered “moderate,” and looked on with favor by a huge segment of the electorate. Many Swedes remain willing to support radical feminist reforms, and that is why the Left Party has co-opted FI’s relationship plan.

Sweden’s bold feminists have exposed the long-term agenda of the social left. Still, given FI’s tactical errors, we can expect Sweden’s social radicals to adopt a more subtle strategy. The Law Commission of Canada has advocated the establishment of a flexible, gender-neutral, multi-partner relationship system in addition to marriage. The strategy is to get that new system going, then subtly phase out marriage, boil-the-frog-style. Expect proposals like this from Sweden.

Even if the Left Party loses its place in Sweden’s governing coalition at some point, it will surely be back. Say a decade from now, under some future left-dominated coalition, the time may be ripe for adopting an experimental multi-partner-friendly relationship system that, in the long run, can push marriage itself aside. As Sweden’s conservatives point out, now that youth divisions of the country’s left-leaning parties are starting to tout polyamory, we can expect future parliaments to consider the idea.

What does it mean when a movement wants simultaneously to formalize gay marriage, equate marriage with mere registered partnerships, equate registered partnerships with mere cohabitation, and then abolish marriage itself? It seems contradictory, but it all makes perfect sense once you realize that Sweden’s social liberals don’t support either gay marriage or registered partnerships out of any affection for marriage itself. On the contrary, Sweden’s social left is simply using gay marriage as a lever to achieve the abolition of marriage itself.

This is not how things were supposed to turn out according to the “conservative case” for gay marriage. Registered partnerships should have decreased cultural radicalism. Instead they’ve merely whetted the left’s appetite for more radical reforms.

Once again, Sweden is showing us a possible future. The idea that we can and should abolish marriage and recognize multi-partner unions has its advocates in America, though they may seem too few to be bothered with. We ought not, however, mistake their chances for long-term success. Those radical advocates recognize something that even the moderate proponents of gay marriage overlook or deny: gay marriage changes the way that young people see and understand their social world. The slope from gay marriage to polyamory and ultimately to no marriage is not slippery by accident, but by design.

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**Polygamy Versus Democracy: You can’t have both. (Weekly Standard, 060530)

IT TOOK A TELEVISION SERIES about a Viagra-popping patriarch with three friendly/jealous wives and tightly scheduled evenings to set off a serious public debate about polygamy. And that was precisely the intention of the creators of this now infamous television show—no, not Big Love, the American series that debuted on HBO in March, but ‘Ailat Al-Hagg Metwalli (Hagg Metwalli’s Family), an Egyptian serial that stirred emotions and sparked a bitter debate about polygamy in the Muslim world during the holy month of Ramadan 2001.

The drama heats up when fiftysomething Metwalli Said, longtime husband of three, decides to court a young woman, Samira, in the hope of making her his fourth wife. Unbeknownst to Metwalli, Samira is in love with his own son, who is eventually forced by his father to forsake Samira to marry the daughter of a relative (as is often preferred in Muslim societies). Metwalli’s Viagra-induced heart attack brings the story to a head.

Metwalli’s polygamy serves as a kind of Rorschach test of Muslim modernization. Studying viewer responses to this serial, Norwegian historian of religion Anne Sofie Roald found that assimilated Muslim immigrant women in the West see Metwalli as a dictator: running around on his wives, forcing them to give up their jobs, forbidding them to leave the house without permission, selfishly forcing his son out of a love marriage, and generally insisting that his word is law.

Yet some unassimilated Muslim immigrant women in Europe, and many Muslim men, admire Metwalli for successfully embodying polygamy as authorized by Islam. Metwalli follows the Koranic precepts: telling all of his wives that he loves them, materially supporting them well and equally, and generally managing his family in the interests of all. Even Metwalli’s son eventually comes around: Affection burgeons in his arranged marriage after his wife bears him a child.

The Ramadan TV special the year after ‘Ailat Al-Hagg Metwalli—another Egyptian serial, this one based on the infamous anti-Semitic forgery the Protocols of the Elders of Zion—was widely reported and discussed in the West. Yet the polygamy serial is at least as revealing. For one thing, it serves as a reminder that in Muslim immigrant enclaves in Europe, Middle Eastern TV is often the entertainment of choice. In Denmark, for example, Muslim immigrants who might otherwise be watching the local media and absorbing democratic values watch fare such as ‘Ailat Al-Hagg Metwalli via satellite dish or on the Arabic-language cable channels provided for segregated Muslim communities in Scandinavia.

More important, the popular series stirred discussion of polygamy. Around 2001, probably less than 3 percent of men in Egypt had more than one wife. Yet this series glamorizing polygamy set off fear among Muslim women who felt themselves potentially subject to a husband’s second marriage. The serial stimulated pro-polygamy sentiment as well. Supporters, including the show’s creators, argued that polygamy is a religiously proper alternative to adultery, divorce, and remarriage, and a real answer for the many unmarried women who might otherwise have no chance at motherhood. Opponents replied that polygamy opens the way to marital discord, divorce, and the consequent destitution and abandonment of women and children.

And that’s just among Muslims. In the United States, years before Big Love made plural marriage fodder for mass entertainment, a debate over polygamy was already underway in the law journals. Today, the dominant school of thought in American family law favors recognition for the egalitarian practice of multipartner union known as “polyamory.” And since the Supreme Court’s 2003 decision in Lawrence v. Texas, which voided laws criminalizing sodomy, law journals have begun to publish calls for the decriminalization, regulation, and recognition of the “patriarchal polygamy” practiced today by so-called fundamentalist Mormons (but vigorously condemned by the mainstream Mormon church). Justice Scalia’s stinging dissent in Lawrence warned that the Court’s general disallowance of morals-based legislation was bound to call into question laws against polygamy. And so it has.

Given the post-Lawrence trend of the law journals, the success of Big Love (recently renewed for a second season), and calls for the legalization of polygamy by commentators at mainstream news outlets like USA Today and the New York Times, it has become necessary to offer a case against polygamy. That case will take us back in time and around the world. It will allow us to compare, on the one hand, the traditional patriarchal polygamy of many tribal peoples, Muslims, and nineteenth-century Mormons with, on the other hand, the free-form plural marriage advocated by “diversity” radicals today. Along the way, it will cast light not only on our domestic debates about marriage, but also on the war on terror and even the meaning of

democracy itself.

Polygamy in American Law

The growing legal literature advocating the decriminalization of traditional polygamy was encapsulated by George Washington University law professor Jonathan Turley in a widely noticed October 2004 op-ed for USA Today. Turley argued that, as a simple matter of equal treatment under law, polygamy ought to be legal. Acknowledging that underage girls are sometimes coerced into polygamous marriages, Turley replied that “banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse.” Like Turley, the law review literature argues that traditional polygamy is not intrinsically abusive, and can therefore be sufficiently policed through existing laws against incest, statutory rape, and child abuse. Big Love, set in a suburb of Salt Lake City, dramatizes this argument by contrasting the “good” polygamy practiced by Bill Henrickson and his three wives with the abusive polygamy in “the compound” nearby controlled by a traditionalist patriarchal figure.

But the law journals do more than merely separate good polygamy from bad polygamy. The law review literature puts forward what we might call the “conservative case” for polygamy. (See, for example, Alyssa Rower’s “The Legality of Polygamy” and Samantha Slark’s “Are Anti-Polygamy Laws an Unconstitutional Infringement on the Liberty Interests of Consenting Adults?”) The argument is that the abuses of polygamy flourish amidst the isolation, stigma, and secrecy spawned by criminalization. By legitimizing polygamy and allowing its practitioners to join mainstream society, we can monitor and regulate the practice, thereby reducing any problems. On Big Love, for example, one polygamous wife won’t visit a hospital for fear of alerting the authorities. Legalize polygamy, the argument goes, and marriage and divorce law will protect polygamous wives, instead of scaring them into hiding.

Of course, liberal law professors aren’t defending polygamy out of affection for patriarchy. Their goal is to establish the principle that individuals have the right to create and define their families as they see fit. Ultimately, that would put same-sex marriage, polyamory, nonsexual group partnerships, and even singlehood on a par with traditional marriage, resulting in the effective abolition of marriage itself as a legal status.

So, for example, in her 2005 brief for legalized polygamy in the San Diego Law Review, Colby College professor of philosophy Cheshire Calhoun is careful to note that multipartner unions are by no means necessarily patriarchal, but would be available to lesbians, gays, and bisexuals, as well as heterosexual women with more than one partner. Likewise, Harvard political theorist Nancy Rosenblum assures us that legalized polygamy will give rise to “subversive” counterpatriarchal forms of group sex and domestic life, perfect for promoting true “democracy.” In effect, Calhoun and Rosenblum see legalized patriarchal polygamy as a backdoor route to recognition for egalitarian polyamory. Commenting on Calhoun, University of Texas law professor Sanford Levinson goes further, welcoming the prospect of communal marriages organized around mutual care rather than sex, among the middle aged and elderly.

Reynolds v. United States

So there is increasing recognition among legal professionals that, along the way to achieving the full-fledged deconstruction of marriage promised by free-form polyamory, it is necessary to make a case for “patriarchal” polygamy as well. Big Love is a product of this line of thinking. As long as traditional polygamy is illegal, the way is also barred to postmodern polyamory. And although Lawrence v. Texas may have opened the door to polygamy, one great legal obstacle to the slide down the slippery slope remains: Reynolds v. United States, the 1878 Supreme Court decision that upheld the constitutionality of antipolygamy laws. That is why Reynolds is target number one of the new wave of advocacy for legalized polygamy/polyamory. Reynolds has long been in the crosshairs of an older wave of polygamy advocacy as well. Harvard’s Laurence Tribe is only the most prominent of a group of old-line liberal legal scholars who have long called for constitutional protection of polygamy on libertarian grounds.

Reynolds v. United States is a landmark decision. It was the first Supreme Court case to clarify the First Amendment’s guarantee of religious freedom by limiting that freedom to beliefs, rather than social practices (like polygamy or suttee, the former Hindu custom of burning widows alive on their husband’s funeral pyre). Interestingly, Reynolds also defends the idea that American democracy rests upon specific family structures, which are legitimately protected by law. Chief Justice Morrison Waite, writing for a unanimous Court in Reynolds, quotes Francis Lieber, the most respected American legal authority of the day: “Professor Lieber says, polygamy leads to the patriarchal principle, . . . which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.”

Although Reynolds justifies prohibitions of polygamy by grounding them in a compelling state interest in protecting the social preconditions of democracy, Reynolds is nowadays dismissed as mere bigotry. Writers like Turley single out the following passage as evidence of the Reynolds Court’s racism: “Polygamy has always been odious among the northern and western nations of Europe, and . . . was almost exclusively a feature of the life of Asiatic and of African people. . . . [F]rom the earliest history of England polygamy has been treated as an offense against society.” Critics like Yale historian Nancy Cott point out that Francis Lieber owned slaves. Thus, Lieber’s arguments, and Chief Justice Waite’s invocation of “odious” African polygamy, are used as proof that Reynolds was motivated by racial animus, rather than social utility. And if shown to be based on racial animus and moral opprobrium, rather than rational state interest, Reynolds would be swept aside by Lawrence, thus making way for polygamy, polyamory, and full-fledged marriage diversity in the United States.

Yet the critics are wrong. There is a deep connection between monogamy and democracy, a link easily separated from nineteenth-century racial attitudes. Even the presumed prejudice of the period is less than meets the eye. The Reynolds Court carefully reviewed jury selection procedures in the polygamy case to make sure that passions and prejudice had been screened out. And Francis Lieber’s antislavery views eventually led him to move to the North, where he spoke and wrote as an abolitionist.

Francis Lieber’s idea that certain social practices “fetter a people in stationary despotism” was widely shared at the time, and resonates with our contemporary interest in democracy promotion. The great liberal political philosopher John Stuart Mill (whose mentor, Jeremy Bentham, was part of Lieber’s European circle) frequently contrasts the “improving” (today we’d say “developed”) character of Western democracies with the “stationary states” of Africa and Asia. In On Liberty, Mill explicitly attributes this difference to social structure, rather than racial inheritance.

In short, Reynolds v. United States was rightly decided. While America’s Founders took it for granted that marriage was a monogamous, heterosexual institution, the Reynolds Court, under pressure from nineteenth-century polygamy, wisely created constitutional doctrine allowing the state to defend a specific family form. Confirming and building on the insights of Reynolds, we shall see why polygamy and polyamory alike are inimical to American democracy, and how non-Western marital practices hamper democratization, even today.

The Mormon Question

Modern Mormonism’s success is certified by the emergence of Mitt Romney, a Mormon governor from Massachusetts—heartland of nineteenth-century antipolygamy sentiment—as a presidential contender. A glance at Mormonism’s largely forgotten history reveals the magnitude of the transformation. The Reynolds Court was not speaking theoretically when it declared that polygamy could “fetter a people in stationary despotism.” Prior to statehood, Utah was a de facto theocracy. For all their differences, Brigham Young and Chief Justice Waite would have agreed that monogamy and polygamy give rise to divergent governing principles.

Brigham Young was simultaneously head of the church, governor of the Utah Territory, and a member of the boards of major businesses. Young decided where his followers lived, the crops they grew, where they shopped, the professions they chose—and who they married. There was little government beyond the church’s structure. Religious leaders schooled their families privately, while most of the territory’s children remained illiterate. Elections were understood not as forums for debate and decision, but as occasions for popular acclamation of God’s choice.

Underlying all this was a deeply communal ethic: Men and women were willing to defer to the church’s leadership for the sake of the broader Mormon society, even in so personal a matter as marriage—within which, of course, wives deferred to husbands. To antipolygamists, this was neither capitalism nor democracy, but a substitution of the rule of men for the rule of laws. Indeed, the ability of church leaders to command personal sacrifice and disobedience to U.S. law fueled resistance to federal enforcement of Reynolds.

The 12-year federal drive to enforce Reynolds was far more than a quest to root out polygamy. In effect, the fight against polygamy was a slow, frustrating, expensive, ultimately successful campaign to democratize Utah. (The parallels to the war on terror are eerie.) As federal agents descended on Utah, the Mormon leadership went underground, sleeping in hay ricks, hiding under floorboards, dispersing to remote mountain valleys, communicating in code, and depending on early warnings from a sympathetic populace.

Given the demonstration effect of the Civil War, polygamists knew that armed resistance was futile. Yet by evading capture and withholding the evidence needed for conviction, the Mormon leadership hoped to win a legal war of attrition. Still, Mormon resistance was limited by the fear of provoking a full-fledged military occupation, and by the thirst for statehood.

For the better part of a decade, polygamist resistance seemed unbreakable. The railroads were supposed to bring civilization (a nineteenth-century version of globalization and the Internet). Instead they brought more Mormon converts. Elections and the female franchise were supposed to sweep polygamy aside. Instead, pious women and unlettered men voted to solidify the church’s power. Then the outlines of a demographic nightmare emerged. With a fertility boom fueled by four decades of polygamy, Utah’s population was spilling into Idaho, Oregon, New Mexico, Colorado, and Wyoming. Mormons bragged that, with the admission of the territories, they would hold the balance of power in a politically divided America.

Back East, these threats provoked a tougher line. Attending to the social and economic foundations of Mormon power, Congress set out to break polygamist rule. By 1833, the disestablishment of churches in the American states was complete, and it had been accomplished partly by state legislatures’ setting limits to the churches’ business and property holdings. Congress now applied these standards to the Utah Territory, modeling its legislation on the original “mortmain” laws that had curbed church power in England. In this way, church control of Utah’s economy was dissolved, and erstwhile church property was used to fund public education, with a curriculum designed around democratic values.

The result was capitulation. With the economic and social foundations of theocracy destroyed, a shooting war unwinnable, and the quest for statehood hanging in the balance, the Mormons renounced polygamy and set themselves on the path to democracy.

Love

While the broader battle with the Mormons was over democracy, both sides were largely driven by the polygamy controversy. We forget how big this issue was. Antipolygamy sentiment helped found the Republican party in 1854. Republicans called slavery and polygamy “twin relics of barbarism,” and Lincoln attacked Douglas over both issues in the campaign of 1860. Today we watch polygamy on TV, but in the mid-1800s, antipolygamy novels were all the rage. Sir Arthur Conan Doyle rode the wave in 1887, when his first story about the detective Sherlock Holmes, A Study in Scarlet, featured an antipolygamy twist.

Why were Americans outraged by polygamy? In a word, because of love. The idea of love as central to marriage, by no means common in the world at large, has a long history in the West, going back to the Bible, notably the letters of Paul. Even so, romantic love as the fundamental pillar of marriage (alongside parenthood, of course) truly came into its own in the mid-nineteenth century. Polygamy was an offense against love, the structural glue of American marriage. To those who valued companionate love, polygamy seemed little better than slavery.

Far from denying this, Mormon theorists openly attacked the romantic sensibility. Polygamist leaders called on Mormons to sacrifice selfish and disruptive romantic desires, building marriages instead on simple friendship and piety. Women who embraced polygamy understood this sacrifice of love as a trial to be endured, if a noble one. Like Muslims today, Mormons touted polygamy as an alternative to prostitution and out-of-wedlock births, and a boon to women facing a dearth of truly marriageable men. And like today’s proponents of same-sex marriage, polygamists and their apologists chided opponents as hypocrites bent on the “consecutive polygamy” of divorce and remarriage.

Yet these arguments fell flat with most Americans, for whom romantic and companionate love was a cardinal aspiration. The Civil War had proven the dangers of fundamental moral differences between regions, and the threat of polygamy was clear. So long as multipartner marriage was deemed legitimate, the ethos of monogamous companionate marriage was at risk.

The problem was neither theoretical nor confined to the Utah Territory. Today we take monogamy for granted. Yet for much of the nineteenth century, monogamy was questioned by “free lovers” on the cultural left, as well as by Mormons on the cultural right. While the Mormon kingdom was growing out west, an array of proto-socialist communal experiments in “free love” were cropping up in other parts of the country. These ventures were widely and heatedly debated. Virtually all free love communities were evanescent. Yet the experiments continued for decades, so that in nineteenth-century America, it was not taken for granted that monogamous marriage would retain its cultural preeminence.

Free love was clearly on the minds of the antipolygamy novelists. And some scholars think a passage in the Reynolds decision may have alluded to the famous Oneida community’s quasi-socialist experiment in “complex marriage.” (Complex marriage involved varied sexual parings, sometimes arranged by request, with the help of third parties, but often assigned by the community’s leader. As a birth control measure, men had to have special permission from the leader to ejaculate during intercourse. Steady pairing within the group was strongly discouraged.) Reynolds had the effect of ending both Mormon polygamy and free love experiments in the rest of the country. It emboldened Oneida’s opponents, and soon after Reynolds the Oneida community itself voted to end complex marriage.

Reynolds resolved America’s monogamy question for a century. Yet it is worth remembering that the issue has been undecided for much of our history. Today’s emerging alternatives of monogamy, “patriarchal” polygamy, and polyamory largely recreate the options of democratic monogamy, theocratic Mormon polygamy, and quasi-socialist free love that warred for decades in the nineteenth century, until the Reynolds court resolved the conflict.

The question is: Did Reynolds actually safeguard the structure of American marriage, and with it our democratic culture? Or—as is so often argued today—was the court’s opposition to multipartner marriage mere bigotry? Consider our best account of the polygamy controversy, Sarah Barringer Gordon’s The Mormon Question (on which I’ve drawn here). Gordon is torn between the impulse to attribute opposition to polygamy to mere prejudice, and a grudging acknowledgment that much of what the critics of polygamy had to say about the old Mormon system was true. The problem is that neither Gordon nor the law professors are inclined to treat arguments about marriage and social structure as anything but rhetoric. The Reynolds Court knew better. And contemporary experience suggests they were right.

Africa in Paris

Perhaps between 200,000 and 400,000 of France’s five-million-plus Muslims live in polygamous families. When workers were needed to stoke Europe’s post-World War II economic boom, France freely granted visas to family members of polygamous immigrants. Problems of assimilation and delinquency developed and eventually prompted France to ban polygamy in 1993. Yet the law has been only intermittently enforced, and many polygamous wives continue to enter the country illegally. Polygamous immigrants come largely from sub-Saharan countries like Mali, Senegal, and Gambia. Most settle in ethnic enclaves in the poorer suburbs of Paris.

Polygamous husbands long resident in France still fetch young wives from rural African villages. These women have little formal education or command of French, and often live isolated lives, leaving home only to shop, visit their children’s schools, or seek medical care. In Africa, co-wives and their children generally live in separate houses or huts. But housing costs in France force families of 20 or more to share tiny apartments, where tensions between co-wives run high. Child supervision is limited and delinquency is common. In extreme cases, children sleep in shifts, making school attendance all but impossible.

Like the early Mormons, transplanted African polygamists frown on romantic love. If a man favors a barren wife over one who’s produced children, the barren woman may be suspected of seducing her husband through sorcery. In Africa, accusations of witchcraft concentrate in polygamous families living under the same roof. This carries over to France, where life in cramped apartments often leads women to interpret stomach pains as antifertility sorcery by a co-wife.

Despite the 1993 ban, by the time of the Paris riots in the fall of 2005, polygamy had become a taboo topic for mainstream French politicians. Raising questions about the real-world effects of family structure was stigmatized as bigotry by civil rights advocates and French Muslims alike. Yet after riots broke out in the suburban enclaves where polygamous families concentrate, Bernard Accoyer, parliamentary leader of President Jacques Chirac’s party, gingerly pointed to polygamy as one of several causes of the disturbances. Various prominent politicians and scholars followed suit.

No sooner had the taboo on discussion of polygamy been broken than a furor ensued. “Antiracism” groups called the comments “sickening and irresponsible.” “These accusations shame the nation,” said the powerful MRAP (French Movement against Racism and for Friendship Among Peoples). MRAP threatened to bring legal action against the historian Hélène Carrère d’Encausse, permanent secretary of the prestigious French Academy, for her suggestion that large families with little parental supervision crammed into small apartments had played a role in the disturbances. (Hate-speech lawsuits are a favorite device of the French left for shutting down public debate.)

The attack from the left, and pressure from France’s allies in Africa (where public anger at the polygamy remarks ran high), quickly forced President Chirac, through a spokesman, to distance his government from the controversy. When Chirac arrived in Mali for a December 2005 summit, he personally ruled out any connection between polygamy and the riots. Yet Chirac’s government has proposed a law that would make it more difficult for French residents to bring in foreign spouses and children. And Prime Minister Dominique de Villepin and Interior Minister Nicolas Sarkozy have issued repeated calls for stricter enforcement of the polygamy ban.

Post-World War II France was not about to imitate nineteenth-century America’s outrage at polygamy. Intentionally turning a blind eye to the practice, the French assumed that any social implications would be trivial. Yet France’s most respected leaders now find it difficult even to speak openly about what has obviously become a serious social problem. And the legal ban has lost its bite. With a critical mass of practitioners on French soil and able to vote (or riot), and with the left seizing on polygamy as a civil rights issue, enforcement of the ban is in doubt, no matter how it’s strengthened on paper.

Ever since the attacks 40 years ago on the Moynihan Report, with its prophetic warning over the collapsing black family in America, it has been difficult to raise questions about the social implications of family structure without being excoriated for bigotry. This hinders the debate over gay marriage in the United States as well as the controversy over polygamy in France. Yet among immigrants across Europe, polygamy has proven itself incompatible with democratic values. The Reynolds Court is being vindicated again before our eyes.

But why? What exactly is it about polygamy that militates against democracy? And can the problem really be solved, as the radical law professors argue, by transforming patriarchal polygamy into postmodern polyamory? On this matter, experience in Canada is relevant.

The Canadian Debate

Amidst the Canadian government’s push for same-sex marriage in 2005, Justice Minister Irwin Cotler famously declared, “We don’t see any connection, I repeat, any connection, between the issue of polygamy and the issue of same-sex marriage.” To prove it, Cotler commissioned four separate studies of polygamy by legal scholars and civil rights groups. Cotler got his comeuppance in January 2006, when a freedom of information request forced release of the four studies in the middle of an election campaign. To the embarrassment of Canada’s ruling Liberal party, a firestorm erupted over a report advocating the decriminalization and regulation of polygamy. Actually, the press missed half the story, since two of the four studies favored decriminalization. A look at one report on each side of the controversy will help unravel the mystery of the antagonism between polygamy and democracy.

The first report is the work of an opponent of polygamy, Queen’s University law professor Nicholas Bala (and his associates). Bala draws on the social science literature to support his claim that polygamy is inherently harmful to women and children. Trouble is, the literature is divided on this question.

Bala relies heavily on the work of Alean Al-Krenawi, an Israeli professor of clinical social work who’s conducted numerous studies of polygamy among the Bedouin Arabs of Israel’s Negev desert. Al-Krenawi makes a powerful case that, among the Bedouin, senior wives and their children suffer when junior wives enter polygamous families. First marriages among the Bedouin are parentally arranged alliances, often between cousins or other relatives. Second marriages are self-arranged, and more likely to reflect the husband’s choice. So it’s particularly difficult for a senior wife when a new wife comes on board. Senior wives have high incidences of depression and anxiety, and their children do poorly in school. In general, Al-Krenawi’s data show Bedouin wives and children in polygamous families to be worse off than those in monogamous families.

Yet it’s tough to generalize from Al-Krenawi’s findings. There are plenty of societies where co-wives are friendly (if also jealous), happily collaborating on chores and child-rearing. In some cultures, senior wives help choose junior wives, and welcome them for the household help they bring. Recent studies by Al-Krenawi and others show that the negative effects of Bedouin polygamy on children disappear by adolescence, as older children and extended family members step in as surrogate parents. Bala downplays all this.

Good Polygamy?

Around the time she signed a public letter from Canadian law professors in support of same-sex marriage, McGill University law professor Angela Campbell submitted her report to the Canadian government recommending the decriminalization of polygamy. Campbell has read the same social science research as Bala, yet she turns it to radically different purposes. Campbell highlights the problems with generalizing from Al-Krenawi’s work, while noting that the anthropological literature makes it tough to characterize polygamy as either all good or all bad. So don’t go after polygamy itself, says Campbell. Target individual abuses.

Campbell builds her case on an article by University of Colorado research associate Sangeetha Madhavan. Madhavan worked in Mali, among some of the same groups that send polygamous immigrants to the suburbs of Paris. By comparing two nearby societies, the Fulbe and the Bamanan, Madhavan shows that the experience of women in polygamy differs, depending on context. The Fulbe structure families in a way that increases competition among co-wives. But among the Bamanan, families are organized to minimize jealousy and encourage collaboration. For Campbell, this proves that polygamy itself is not the problem.

Yet Campbell never stops to ask what it takes to make polygamy work. The answer: a set of rules and attitudes that could never be imported to North America, except in the few closed, authoritarian communities where “patriarchal” polygamy actually flourishes today. The Bamanan deflect jealousy by deemphasizing love. Bamanan marriages are arranged by families, and a sleep-rotation schedule damps down individual attachments. Economic success depends on having a large family labor force, and jealousy over newcomers is countered by apprenticing junior wives to senior wives, who closely supervise their daily work.

This same emphasis on rules and hierarchy within a tightly bound group explains why the Bedouin children studied by Al-Krenawi turn out all right. Things get better when Bedouin kids grow up and receive surrogate parenting from their extended kin. But that depends on giving up what Al-Krenawi calls “the Western liberal conception of individual autonomy.” To get all that surrogate parenting, the Bedouin adopt an “authoritarian and group-oriented” identification with an extended family and tribe. And consider “sororal polygamy,” easily the most emotionally successful variant of polygamy world-wide. In sororal polygamy, a man marries a set of sisters, minimizing jealousy. It’s a clever strategy, but just try adapting such kin-based preferences and arranged marriages to the United States.

Alexis de Tocqueville, that great nineteenth-century student of America, pointed to the abolition of primogeniture (exclusive property inheritance by first-born sons) as the social key to American democracy. Once American children inherited equally, said Tocqueville, landed estates were dispersed, and the ethos of kin unity and hierarchy was replaced by a spirit of democratic equality. Yet America’s abolition of primogeniture was only the culmination of a process begun centuries earlier by the Christian Church. Muslim families arrange marriages to cousins and other kin, thereby reinforcing couples’ identification with family and tribe. But from the fourth century through the Middle Ages, the Church fought to protect individual choice in marriage, while prohibiting marriage between cousins and other relatives. That undercut social forms based on kinship and collective identity, ultimately leading to the triumph of democratic individualism in the West.

Yet the weakening or even disappearance of extended kinship groups from family life in the West poses a problem. If families aren’t going to be held together by collective honor, mutual obligation, and shared economic interest, how will they cohere? The answer is love. Exclusive affection for a unique individual is the structural foundation on which Western families are built. In polygamous societies, where marriages are arranged and wives and children live collectively, too much individualized love (for spouses or children) endangers group solidarity. Yet in a democratic society, individualized love is praised and cultivated as the foundation of family stability. So take your pick. You can have a love-based democratic culture of monogamy, or an authority-based hierarchical culture of polygamy. But—as the Reynolds Court knew—you can’t have both.

Polyamory

Far from offering a democratic solution to the problem of multipartner unions, egalitarian polyamory simply reveals another face of the polygamy dilemma. It is inherently difficult to keep multipartner unions together. The traditional solution is to rely on rules, clear lines of authority, the suppression of emotion, and a sense of obligation to kin. Collective solidarity is the material and spiritual payoff for all the sacrifice. Yet the polyamorists cultivate love, resist authority, dispense with organizational rules, and try to wish jealousy away. Once all the stability-inducing sacrifices have been dispensed with, impermanence is the inevitable result.

Polyamory is a cover-all term for a bewildering variety of relationship forms—everything from open marriage, to bisexual triads, to a man with multiple women, to a woman with multiple men, to large sexual groups, and many more. The “rules” governing these arrangements are entirely flexible. There might be three “primary” partners who actually live together, and several additional “secondary” partners (collectively shared or not) to whom the three “primaries” are less committed. The levels of commitment, and the range of partnership and mutual involvement, are subject to continual change and renegotiation. Open and honest communication is the only rule. Polyamorists emphasize that multipartner unions take intense and constant work. Yet this need for a higher level of monitoring and negotiation only highlights the forces pushing against stability.

The contrast between postmodern polyamory and the patriarchal polygamy of Muslim fundamentalists resembles the nineteenth-century duality of “free love” and Mormon polygamy. Mormon plural unions were authoritarian and relatively stable (although even in the nineteenth century they had very high divorce rates). The free love experiments nearly all collapsed after a few short months or years, although new experiments were generated continually for decades. That record of instability was repeated when the hippie communes of the 1960s and 70s fell apart.

This might not matter were it not for the problem of children. Family stability is highly desirable for children. Not only would legally recognized polyamory be unstable, but the legitimization of polyamory would also be incompatible with one of our core reasons for giving marriage the backing of law at all: to reinforce monogamy as a cultural value.

You can’t send the message that marriage means fidelity when even a small portion of recognized marriages are polyamorous. The reliance of Western marriage systems on monogamous companionate love for stability is all but ignored by the advocates of polyamory, who have little or nothing to say about children. Over and above prevention of individual abuses, protection of the broader cultural ethos of monogamy is the reason both polygamy and polyamory must go unrecognized in America. Democratic culture depends on monogamous marriage. The alternatives are either too authoritarian to be adapted to our society or so hyper-individualist that they cannot perform the work of families. And recognition of either alternative would undermine the monogamy on which the stability of American marriage depends.

But if democracy depends on monogamy, what does that tell us about introducing democracy to non-Western cultures?

Marriage and Terror

The long, frustrating, yet spectacularly successful campaign to democratize the Utah Territory by changing its marriage practices holds lessons for us still. Elections and the threat or use of force are only part of what it takes to turn an authoritarian society around. Over time, the social and economic foundations of undemocratic rule must be weakened or circumvented. An actual desire to join the democratic universe must take root.

Many of the Muslim immigrants drawn to Europe after World War II by what, for them, were spectacularly high-paying jobs had no intention of becoming Europeans. Their plan was to remit a portion of their salaries to family in Asia or Africa and eventually return home. When, instead, these workers imported their families to Europe, their mindset barely changed. We know something about how religious belief, satellite television from the Middle East and North Africa, and the seclusion of women have walled off Europe’s Muslims from their cultural surroundings. Yet few realize the extent to which marriage practices organize and explain this larger pattern of isolation.

Muslim polygamy in France is a dramatic illustration of the broader link between non-Western marriage practices and failed assimilation. Partners for polygamous marriages are easy to find in Africa, where young women who accept polygamy seize the opportunity to reach Europe via marriage. Over time, the Africa-France conveyor belt prevents resident immigrants from assimilating through intermarriage, while simultaneously importing a continuous supply of immigrants unfamiliar with European language and culture. Secluded indoors, with limited knowledge of the society around them, polygamous wives can barely supervise their French-born children. Naturally, unassimilated immigrants gravitate to the more culturally familiar world portrayed by entertainment from abroad.

Tocqueville and the Reynolds Court understood that particular family structures yield “habits of the heart” compatible or at odds with democracy. Yet the connection is complex. India is home to a lively democracy, but is also a land of marriages arranged through kin and caste. The British planted the seeds of Indian democracy by creating a small but powerful professional class whose advancement depended on education and merit, rather than kin ties. Democratization in the Middle East, and Muslim assimilation in Europe, are going to require that kind of attention to the underlying barriers to change—none more powerful than kin ties and marriage practices. Yet seeing family issues through the prism of individual civil rights, we’ve forgotten that marriage practices have real-world consequences.

An End Game

The new wave of Big Love-inspired talk about polygamy is directly attributable to the campaign for same-sex marriage. Big Love was created by a pair of gay-marriage advocates, who use the show to highlight the analogy between same-sex unions and polygamy. And Big Love is merely a hint of things to come. Radicals have long seen same-sex marriage as a lever with which to break the grip of monogamy. Should gay marriage be safely legalized, the radicals will emerge in force. Mainstream liberals like Sanford Levinson (who has a soft spot for experiments in multipartner marriage) openly advise the gay marriage movement to distance itself from marriage radicalism until after gay marriage is legalized. Big Love notwithstanding, that advice is largely heeded.

A few same-sex marriage advocates pretend that by simply offering rational reasons to oppose polygamy, they can neutralize the dangers of the slippery-slope. Multi-partner unions breed jealousy and marital instability, says Slate’s William Saletan. True, but that hasn’t stopped polyamorists from mimicking the argument of gay marriage advocates: Take away the stigma of nonrecognition, and our unions will be as stable as yours. Polygamy deprives men of marriage partners, says National Journal columnist Jonathan Rauch. Potentially, yes, especially in small closed communities. But in a huge country where growing numbers of men don’t marry, and many are unmarriageable, polygamists will make their usual claim to have solved the dilemma of the unmarried woman. Polyamorists will add that unions of one woman and multiple men will help balance out sex ratios. Rauch points to the historical dearth of polyandry (one woman with multiple men) to argue that this won’t happen, but how can he when the gay marriages he favors are themselves historically unprecedented?

More important, by training us to see marriage as a civil rights issue, gay marriage advocates have largely defanged all of these structural arguments. Redefining the family is increasingly seen as a fundamental right. And the courts are beginning to agree. In his prize-winning law review essay “Polygamist Eye for the Monogamist Guy,” Michael Myers argues that if the Supreme Court interprets Lawrence v. Texas the way the Massachusetts Supreme Court did in its decision legalizing same-sex marriage, the right to polygamy will logically follow.

The solution is to treat marriage as a social institution whose fundamental purpose is to encourage mothers and fathers to build stable families for the children they create. Same-sex marriage breaks this understanding, thus encouraging the sort of unstable parental cohabitation we see in Europe, where cohabiting parents break up at two to three times the rate of married parents. And polygamy undercuts companionate monogamy, the only form of marriage that can function in a modern liberal society. What’s needed, then, is the revitalization of a richer understanding of marriage as a culturally specific social form—precisely the approach taken in Reynolds v. United States.

Unfortunately, movement is now in the opposite direction. Jonathan Turley’s latest opinion piece for USA Today signals an all-too-plausible scenario for the final slide down the slippery slope. In 2004, Turley defended the right to polygamy. Now, in 2006, Turley is calling for the abolition of marriage as a legal status and its replacement by a system of infinitely flexible “civil union” contracts. This general disestablishment of marriage may be the most likely route from here to polygamy.

For now, the taboo on polygamy/polyamory makes it difficult for practitioners to defend themselves publicly. They must rely instead on advocacy by mainstream liberals like Turley. Those who scoff at fear of the slippery slope argue that, whatever the logic of the law, without an active advocacy movement, polygamy and polyamory will never be recognized. Turley himself conceded, a mere year-and-a-half before Big Love’s debut, that polygamists would never gain the kind of social acceptance that comes from a sympathetic television show. That spectacularly mistaken prediction underestimated the extent to which polygamists and polyamorists can depend upon help from civil rights advocates, libertarians, lifestyle radicals, and the Hollywood left, all of whom would like to “get the state out of the marriage business.”

But Turley’s greatest ally may be religious traditionalists themselves, who will push to separate marriage and state once same-sex marriage gains a foothold. With same-sex marriage nationalized, and the emergence of an open polyamorists’-rights movement, traditionalists will demand that the state get out of the marriage business. That might temporarily protect a few traditionalist enclaves, but it would also effectively remove the broader social supports for stable, monogamous, parenthood-focused marriage. If that happens, intentional single-motherhood and European-style parental cohabitation are likely to proliferate, as are a raft of experiments in open marriage, polygamy, and polyamory. Family variety will markedly increase, while family stability will continue to erode. The precipitous decline of marriage already seen in parts of Europe and the African-American community will take hold in mainstream America. Welcome to the bottom of the slope.

Marriage, as its ultramodern critics would like to say, is indeed about choosing one’s partner, and about freedom in a society that values freedom. But that’s not the only thing it is about. As the Supreme Court justices who unanimously decided Reynolds in 1878 understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.

Stanley Kurtz, a fellow at the Hudson Institute, is a frequent contributor on the controversy over redefining marriage.

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**Can Democracy Survive Polygamy? (Mohler, 060602)

Observing the landscape of America’s contentious debate over marriage, scholar Stanley Kurtz of the Hudson Institute, remarks, “It has become necessary to offer a case against polygamy.”

That such a claim would appear so utterly reasonable in our times is a clear sign that marriage is in big trouble. That trouble is not, for the most part, localized on the issue of polygamy, but the question of polygamy hangs over current controversies concerning same-sex marriage and the legal status of marriage as a social institution.

Stanley Kurtz is one of the nation’s most prolific writers on issues related to marriage, the culture, and questions of controversy. What makes Kurtz’s work especially important is the fact that he, though a stalwart defender of retaining the traditional definition of marriage, is able to write with a combination of clarity and charity. The argument Kurtz offers is, as time will tell, impossible to refute.

Kurtz’s most recent essay, “Polygamy Versus Democracy,” appears in the June 5, 2006 edition of The Weekly Standard. In this article, Kurtz begins by pointing to a television series about a polygamous patriarch and his complicated family. Most American readers will jump to the immediate conclusion that Kurtz is referring to the HBO miniseries, Big Love. Nevertheless, Kurtz is actually referring to a program popular in Egypt—a drama that focuses upon a polygamous family. As Kurtz indicates, the popularity of the television series set off a controversy that continues to rage through the Muslim world.

Meanwhile, in America, the debate over polygamy emerged among legal scholars long before HBO treated its viewing audience to Big Love. As Kurtz explains, “Today, the dominant school of thought in American family law favors recognition for the egalitarian practice of [the] multipartner union known as ‘polyamory.’” Further, “since the Supreme Court’s 2003 decision in Lawrence v. Texas, which voided laws criminalizing sodomy, law journals have begun to publish calls for the decriminalization, regulation, and recognition of the ‘patriarchal polygamy’ practiced today by so-called fundamentalist Mormons (but vigorously condemned by the mainstream church).”

A quick review of Justice Antonin Scalia’s dissent in the Lawrence case will remind us that Scalia warned back in 2003 that the Supreme Court had effectively put an end to all “morals legislation.” In this view, the legalization of polygamy becomes inevitable.

Progressive legal scholars who are pushing for the recognition and legalization of polygamy have, in the main, few positive feelings about polygamy. Most are committed to ideological feminism, personal autonomy, and the end of patriarchy. So why have these scholars become such ardent proponents of legalized polygamy?

The answer is simple—the legalization of polygamy would effectively end the institution of marriage.

As Kurtz explains: “Of course, liberal law professors aren’t defending polygamy out of affection for patriarchy. Their goal is to establish the principle that individuals have the right to create and define their families as they see fit. Ultimately, that would put same-sex marriage, polyamory, nonsexual group partnerships, and even singlehood on a par with traditional marriage, resulting in the effective abolition itself as a legal status.”

Thus, these legal theorists are quick to insist that the legalization of polygamy would mean, simultaneously, the acceptance of a wide and potentially unlimited range of romantic relationships.

Helpfully, Kurtz also reviews the story of how polygamy became a crime in the United States. In 1878, the Supreme Court upheld the constitutionality of anti-polygamy laws. The adoption of such laws was made a prerequisite for Utah’s entrance into the union. In the Reynolds decision, the Supreme Court not only upheld the constitutionality of laws banning polygamy; the Court effectively established heterosexual monogamy as the family structure on which democracy depends.

“In short, Reynolds v. United States was rightly decided,” Kurtz observes. “While America’s Founders took it for granted that marriage was a monogamous, heterosexual institution, the Reynolds Court, under pressure from nineteenth-century polygamy, wisely created constitutional doctrine allowing the state to defend a specific family form.”

The Court recognized that polygamy and polyamory were subversive of democracy itself, even as companionate marriage serves as the bulwark of a democratic culture.

Of course, polygamy has been practiced, in one form or another, in many societies, both ancient and modern. But, America experienced its most significant encounter with polygamy in the form of Mormon multiple marriages. In its Mormon form, polygamy was strongly patriarchal and the entire system depended upon a strong sense of communal commitment and a system of inflexible rules governing romantic and sexual relationships. In one sense, America had observed polygamy on both the cultural left and the cultural right.

“Today we take monogamy for granted,” Kurtz argues. “Yet, for much of the nineteenth century, monogamy was questioned by ‘free lovers’ on the cultural left, as well as by Mormons on the cultural right. While the Mormon kingdom was growing out west, an array of proto-socialist communal experiments in ‘free love’ were cropping up in other parts of the country. These ventures were widely and heatedly debated. Virtually all free love communities were evanescent. Yet the experiments continued for decades, so that in nineteenth-century America, it was not taken for granted that monogamous marriage would retain its cultural preeminence.

That’s why the Court’s decision in the Reynolds case is so important. Kurtz rightly observes that the Court’s decision effectively ended not only Mormon polygamy, but also the free love experiments common to the era.

The question of polygamy and democracy takes Kurtz to the Middle East and to the Muslim neighborhoods of Paris. He estimates that between 200,000 and 400,000 French Muslims live in polygamous families. These polygamous relationships are, more often than not, unassociated with romantic love. Instead, they function as social and economic units that are defined inward and often take on a posture of hostility towards the larger culture. This social structure explains, at least in part, the explosive riots that shook France earlier this year. In Europe, “polygamy has proven itself incompatible with Democratic values,” Kurtz observes. As he argues, “The Reynolds Court is being vindicated again before our eyes.”

Meanwhile, across America’s northern border, Canada is involved in its own experiment with polygamy and polyamory. In the Canadian case, the debate over polygamy grew directly out of efforts (successful in the end) to legalize same-sex marriage. In support of polygamy, McGill University law professor Angela Campbell argued that polygamy “works” in some cultures. Yet, Kurtz counters that Campbell “never stops to ask what it takes to make polygamy work.” What it “takes” is “a set of rules and attitudes that could never be imported to North America, except in the few closed, authoritarian communities where ‘patriarchal’ actually flourishes today.”

In other words, progressive legal theorists are now putting themselves in the position of arguing for a return to patriarchy—at least as an incremental step toward the complete abolition of marriage as a social and legal institution.

These same progressive legal theorists celebrate the possible acceptance of polyamory as an umbrella for what Kurtz describes as “a bewildering variety of relationship forms—everything from open marriage, to bisexual triads, to a man with multiple women, to a woman with multiple men, to large sexual groups, and many more.”

Now, the argument has migrated from the limited audience of law journals to the popular audience of cable television. HBO’s Big Love, created by two gay-marriage advocates, “is merely a hint of things to come,” Kurtz warns. “Radicals have long seen same-sex marriage as a lever with which to break the grip of monogamy. Should gay marriage be safely legalized, the radicals will emerge in force.”

In the end, Stanley Kurtz comes to a sobering conclusion: “Marriage, as its ultramodern critics would like to say, is indeed about choosing one’s partner, and about freedom in a society that values freedom. But that’s not the only thing is about. As the Supreme Court justices who unanimously decided Reynolds understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the heart of the monogamous family.”

Christians believe more than that, of course. We must assert that monogamous heterosexual marriage is also the Creator’s gift for human happiness, the satisfaction of the husband and the wife, and the healthy nurture of children into capable adults. The current debate over polygamy—now spreading into the popular culture—is yet another reminder that if marriage is not limited to the union of a man and a woman in a monogamous relationship, it eventually can and will mean virtually anything, and perhaps even everything.

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C&MA Instructional Statement on Marriage-Divorce-Remarriage

The following instructional statement is intended as an expositional guideline of common understanding to which Assembly 1986 (Edmonton) subscribed.

For some, the interpretation may be too broad and, for others, too confining. But a common standard is needed in order to deal adequately with the problems of divorce and remarriage. The position set forth here neither promotes divorce nor weakens the scriptural stance represented in former legislation. The Commission of Divorce Study endeavoured neither to take from nor to add to scriptural teaching on divorce.

1. Introduction

1.1 Today, more and more marriages are failing; divorces and remarriages are becoming increasingly common. If couples who live together without the benefit of a registered marriage contract and then separate are counted, half the marriages that take place today in North America fail.

1.2 Yet marriage is an essential, sacred institution, a cornerstone of society. It was established by God Himself when in Genesis 2:18 the Lord said, “It is not good that the man should be alone; 1 will make an help meet for him,” and marriage has enjoyed divine sanction and blessing across the centuries. Ephesians 5 reveals the sacredness of marriage when the union between Christ and the Church is used to illustrate the husband-wife relationship.

1.3 Therefore, the church today must do everything in its power to encourage and maintain the institution of marriage and on God-given grounds. Some today would set standards for conduct in this area other than by the authority of the Word of God. Even among those who seek to hold to biblical authority there are divergent opinions. particularly with respect to the right of divorced persons to remarry. It seems imperative, therefore, that The Christian and Missionary Alliance in Canada set forth what we understand to be the scriptural teaching on these subjects.

1.4 This statement is designed not to answer all questions and cover all situations, but to provide guidelines from which can be drawn scriptural applications to varying situations. This has been written with the social conditions of North America in view. Consequently, some adaptation may be necessary in countries overseas because of special social situation.

2. Marriage

2.1 God instituted marriage as an honorable estate (Heb. 13:4) for the blessing of companionship (Gen. 2:18) and as a continuation of the divine work of creation in the history of the human race (Gen. 4:1). Marriage is not a requirement for perfection of personhood, nor is it a necessity for fulfillment in God’s highest purpose. Marriage may, in fact, hamper a person’s unconditional readiness for the call of God, and there are those who have the gift of retraining from marriage (Matt. 19:12; 1 Cor. 7:7).

2.2 God intended marriage to be a monogamous, life-long union as clearly implied in Genesis 2:24. “Therefore shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh.” Jesus recalled this original order of creation to overthrow the lax interpretation and practice of the Mosaic law (Mark 10:6ff.). Although polygamy was sometimes practiced in Old Testament times, the Bible makes clear that God intended marriage to exist between one man and one woman for as long as both of them remain alive. In Romans 7:2 the Apostle Paul wrote: “For the woman which hath an husband is bound by the law to her husband so long as he liveth: but if the husband be dead, she is loosed from the law of her husband.” (See also I Cor. 7:39)

2.3 The strict and lofty terms with which the marriage bond is described in the New Testament has its primary focus on human fellowship and the family. The basis of all marital love is, for the Christian, the love of Christ for the Church (see for example Eph. 5:31ff.). Marriage is constituted first in mutual covenant. Marriage is a solemn, binding agreement entered into before God and man (Mal. 2:14). Ezekiel 16:8 uses marriage to illustrate the relationship between God and Israel and speaks of this relationship as a covenant entered into on the basis of swearing on an oath or a pledge. Jesus, in John 2, sanctioned by His presence a marriage being recognized and solemnized by a public celebration. Therefore, men and women should enter marriage with a legal contract and pledged vows, preferably under the administration of a Christian minister, and not just by deciding to live together.

2.4 Marriage is a physical union. This is clearly set forth by the Apostle Paul in I Corinthians 6: 16fT. Marriage is designed to be a unity of flesh and spirit and represents the wholeness of that unity (I Thess. 4:3-5). In II Corinthians 12: 19-21 the Apostle Paul warns the Corinthian church that impenitence of those who committed sexual immorality would necessitate his intervention.

2.5 In no case ought any person to enter into any so-called “marriage” with a person of the same sex. Homosexual unions are specifically forbidden and are described in Scripture as manifestations of the basest forms of sinful conduct since they degrade human dignity and desecrate God’s creational design (see Lev. 20:13; Rom. 1:26-27,32; I Cor. 6:9).

2.6 A Christian should not marry a person who does not know Christ as personal Saviour. II Corinthians 6:14 is explicit, “Be ye not unequally yoked together with unbelievers.” ‘The final few words of I Corinthians 7:39 suggest the same standard; widows who remarry are told to do so “only in the Lord.” Love for Christ is never to have second place (Matt. 6:33).

3. Divorce

3.1 Divorce is a departure from the purposes of God. While in the Old Testament divorce was allowed and apparently easily secured, this, like polygamy, was contrary to God’s highest intentions. Jesus explained that provisions for divorce in the Old Testament were an accommodation to “the hardness” of people’s hearts and a necessary evil (Matt. 19:8). The prophet Malachi declared, “For 1 hate divorce, says the Lord the God of Israel” (2:16 RSV). Jesus said, “What therefore God hath joined together, let no man put asunder” (Matt. 19:6; see also Mark 10:6-9). The Church, therefore, should seek always to discourage divorce as a solution to marital problems. The Bible teaches that even when a Christian is married to an unbeliever, the Christian should continue to live with his or her mate if at all possible (1 Cor. 7:12-13).

3.2 While divorce is always contrary to God’s intentions, there are certain circumstances when it is permitted. .Jesus said in Matthew 5:32 and again in Matthew 19:9 that a person is not to divorce his mate except for the cause of fornication. The Greek word used for “fornication” refers to habitual sexual immorality for which the synonym “whoredom” may be used, implying all kinds of immorality, including adultery which desecrates the marriage relationship - a view generally accepted by Greek scholars.

3.3 The absence of this allowance in Mark 10:6-12 and Luke 16:18 does not set aside the practical conditions for carrying out the Mosaic practice of divorce in the new age Christ establishes. But He makes a sharper interpretation which handles the problem of divorce as a lesser evil to the continuation of an impossible situation. Divorce is expressly denied for the immediate purpose of marrying someone else (Mark 10: 11-12).1t is incumbent, therefore, that a believer entertain divorce only as a last resort and because of violations through whoredom - never as a reason to marry someone else. When one partner of a divorce has become involved in adultery, the offended mate is permitted, though not required, to get a divorce. If an unsaved husband or wife refuses to continue to live with his or her mate and departs, the believer may agree to this separation: “But if the unbelieving depart, let him depart. A brother or a sister is not under bondage in such cases” (1 Cor. 7:15). Such separations may result in divorce, and in that event the Christian is guilty of no wrong.

4. Remarriage

4.1 The remarriage of persons who have been divorced is permitted by Scripture under certain circumstances. If, after being divorced, one of the original marriage partners dies, the remaining partner is free to remarry. Romans 7:2 and I Corinthians 7:39 make clear that death dissolves the marriage relationship.

4.2 When an adulterous relationship has brought about a divorce, the party who is innocent of adultery has a right to remarry. The words of Jesus, “Whosoever shall put away his wife, saving for the cause of fornication,” implies the right of remarriage. When He adds, “And whosoever shall marry her that is divorced (the guilty party) committeth adultery” (Matt. 5:32), the right to marry anyone guilty of adultery is denied and also to marry anyone who obtained a divorce for the express purpose of remarriage (Mark 10: 11-12).

4.3 The consistency between the Old Testament and the New Testament is recognized as Jesus interpreted it. The passage in Deuteronomy from which Jesus quoted in Matthew 5 :31 and Mark 10:2-12 indicates that the “putting away” of a wife dissolves the marriage and allows remarriage. Jesus did not change the nature of divorce as dissolving marriage and permitting remarriage; He simply rejected all rationalization and excuse for divorce and made clear that only the innocent party whose former marriage was revoked by divorce could remarry without guilt.

4.4 According to the teaching of I Corinthians 7, which permits divorce when an unbelieving husband or wife of a believer “departs” (note 3.3), remarriage on grounds of desertion alone is not permitted according to verse 11: “But if she depart, let her remain unmarried, or be reconciled to her husband: and let not the husband put away his wife.” In other words, if the unbelieving, deserting party is not deceased and does not remarry, neither should the one who has been deserted remarry.

4.5 When two unbelievers have been divorced and one is subsequently converted and neither has remarried, the Christian should attempt to restore the marriage. If the non-Christian refuses, this makes the marriage the same as the kind described in I Corinthians 7:15.

4.6 If a person is divorced on other than the above scriptural grounds and his or her former partner remarries, that partner by remarrying has, according to scriptural standards (Matt. 5:32 and 19:9), committed adultery and has dissolved the original relationship.

4.7 Remarriage is never commanded; it is in some cases only permitted. Divorced persons who have scriptural grounds for remarriage should enter into such remarriage only with the greatest caution. Seldom is there a marriage failure for any cause in which one of the partners is “completely innocent.” The applicant for remarriage should demonstrate an attitude of repentance for any part he may have had in the original failure. He should receive counselling from the church so as to avoid repeating destructive attitudes and action.

4.8 Persons who remarry after being divorced on other than scriptural grounds are guilty before God of adultery. Jesus said, in Matthew 5:32, “Whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery.” Such marriages should not be performed by a Christian clergyman.

4.9 Persons who have been divorced on other than scriptural grounds, who subsequently become Christians, are not absolved from the necessity to remain unmarried by having become Christians. While it is true that we are made new creatures in Christ, we continue to bear legal and moral responsibilities that existed before conversion. A person, for example, who contracted a debt as a non-Christian, is not absolved of an obligation to pay that debt by becoming a believer. A man who brought children into this world as a non-Christian must still provide for those children after his conversion. A man who contracted a marriage while a non-Christian must honor the terms of the marriage contract even after he is in Christ.

4.10 Persons who were divorced and remarried without scriptural grounds prior to conversion should not feel obligated after conversion to withdraw from the subsequent marriage. The remarriage that was entered into wrongly constituted an act of adultery that broke the former marriage. With his former marriage, then, having been dissolved, the remarried person is responsible to be faithful to his new contract. Having broken the former marriage, he is ‘living in adultery” only if he is unfaithful to his present marriage contract.

4.11 Persons who are divorced, or divorced and remarried on scriptural grounds, are entitled the full privileges of fellowship and membership in the church. A believer who was divorced, or divorced and remarried on other than scriptural grounds while still a non-believer, should likewise be received into full Christian fellowship. The grace of Christ forgives all sin; the person in Christ is a new creation.

4.12 Discretion, however, must be exercised in the choice of divorced and remarried persons for places of leadership in the church. While all believers are equal members of the Body of Christ, not all members are qualified equally for every office in the church. The offices of elder (spiritual leader) and deacon (business leader) in the church are to be filled by those of high moral and spiritual qualifications, whose pattern of exemplary Christian living is so established that it may be followed.

4.13 A believer who knowingly secures a divorce on other than scriptural grounds, or a believer who knowingly marries someone who was divorced on other than scriptural grounds, or a believer whose divorce was granted on other than scriptural grounds and who remarries, should be disciplined by the church and be granted full privileges of Christian fellowship only after a demonstration of genuine repentance for deliberate departure from scriptural standards.

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Free Methodist Manual

630.3 AS REGARDS DIVINELY APPOINTED INSTITUTIONS

There are at least three divinely appointed, earthly institutions. One of these is marriage and the family. A second is the church. A third is the secular government. Only the church, among these institutions, will last in eternity. Nevertheless, the Scriptures have clearly placed a great deal of importance on how we act with respect to each of these institutions, before the return of Christ.

This section is intended to describe a Christian point of view on these important institutions. Important principles are the focus: there is no attempt to be comprehensive. Principle statements, represent what we believe are the central, clear teaching of scripture on these institutions. We also believe that the application statements that accompany the principle statements are clear inferences from the Scriptures, but they are presented here to assist our churches and members in applying scriptural principles.

630.3.1 The Christian and Marriage

630.3.1.1 Principles Regarding Marriage

Nature of Marriage: At creation God instituted marriage for the well being of humanity (Genesis 2:20-24; Mark 10:6-9). Marriage is the joining of one man and one woman into a lifelong relationship which the Scriptures call “oneflesh.”

Sexual intercourse is God’s gift to humanity, for the intimate union of a man and woman within marriage. In this relationship, it is to be celebrative (Hebrews 13:4). Marriage is therefore the only proper setting for sexual intimacy. Scripture requires purity before and faithfulness within marriage. Likewise, it condemns all unnatural sexual behaviour such as incestuous abuse, child molestation, homosexual activity and prostitution (I Corinthians 6.9; Romans 12:6-27).

We believe therefore that marriage should be safeguarded and supported by both the church and society and should be formalized with public vows. It is not enough for a couple to live together in private commitment; we believe that they are to covenant before God and the state.

630.3.1.2 Nurturing Healthy Marriages

The Free Methodist Church urges its people to enter the covenant of marriage prayerfully. In accordance with the apostle’s command (II Corinthians 6:14), we expect them to marry only believers. Ministers are required to use diligent care when being requested to solemnize a marriage. Those who unite believers to unbelievers go contrary to the explicit teachings of the Scriptures. Before entering into marriage, our people should counsel with their Christian leaders. Young people contemplating marriage should seek parental consent. Our ministers shall not officiate at the marriage of any person under age, unless parents or guardians are present or have given written consent, and unless two witnesses are present who know the couple.

We desire that our churches provide instruction in sex education and preparation for marriage. Pastors shall see that all candidates for marriage have received premarital guidance, using materials consistent with denominational teaching. We further encourage local churches to provide resources such as seminars and retreats to strengthen marriages and build Christian homes.

630.3.1.3 Healing Troubled Marriages

The church which is alive to God has spiritual resources for marriages in trouble. The chief resources are the renewing power of the Holy Spirit and the Word, prayer and the sacraments, counsel and support. Through the church’s ministry, God can bring healing and reconciliation.

Therefore, if our members find their marriage in crisis, we encourage them to seek the counsel of the pastor and submit to the guidance of the church. Professional counsel may be necessary.

We recognize that domestic violence, emotional and/or physical, does occur in church-related families. It often jeopardizes the safety of a spouse or children and may threaten life itself. These family members need both spiritual and emotional healing (Malachi 2:13-16).

When an impossible situation is destroying the home, we advise that Christians may separate. In such cases, the way to reconciliation must be kept open (I Corinthians 7:10-11). Even when a marriage is violated by sexual infidelity, the partners are encouraged to work for restoration of the union.

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Why Marriage Is Worth All the Trouble (EFC, 010600)

Christianity has always extolled marriage as an absolute good. In some traditions it is considered a sacrament, as important as communion and baptism. That leaves many Christians feeling awkward, compelled to defend the greatness of matrimony to their non-Christian neighbours while knowing that they are personally struggling with their own marriages.

There are good reasons for feeling defensive today: conventional wisdom in society sees marriage as either outmoded, irrelevant or badly in need of rethinking. While secular reporters and pundits pay envious homage to celebrity pairings, reverence for marriage is being eroded by the widespread trend toward cohabitation, the increasing acceptance of childbirth out of wedlock, the promotion of same-sex unions, and the influence of mass entertainment, which routinely celebrates promiscuity, romanticizes adultery and packages love as just another banal commodity.

Marriage as an institution seems truly besieged-and yet an honest look at marriage, one that admits it takes work and that Christians don’t have perfect marriages, offers resounding affirmation. Many marriages today are succeeding. Increasing numbers of strugglers are seeking and finding help. And many ministries are finding new ways to help Christians in what the old Anglican ceremony referred to as an “excellent mystery”-marriage.

Although many of the key people promoting marriage are evangelical believers, some secular social scientists and researchers are also concluding that matrimony can enrich lives, regardless of the participants’ spiritual perspectives. Marriage has been proven to be sociologically and psychologically beneficial, in myriad ways (see sidebar).

Aside from the immediate physical and emotional benefits to participants, marriage advocates see the institution as having transcendent value. Last November an American coalition proclaimed A Christian Declaration on Marriage. The coalition included the National Conference of Catholic Bishops, the Southern Baptist Convention and the National Association of Evangelicals.

“We believe that, in marriage, many principles of the Kingdom of God are manifested,” they stated. “When a marriage is true to God’s loving design, it brings spiritual, physical, emotional, economic, and social benefits-not only to a couple and family, but also to the Church and to the wider culture.”

This statement is one of the more public manifestations of what some are now calling the Marriage Movement. The movement involves the scholarly endeavours of various institutes and authors, and concrete efforts to enrich and preserve marriages.

Focus on the Family is one of the premier organizations in North America promoting the virtues of matrimony. Marriage, says Darrel Reid, president of Focus Canada, “offers a unique benefit to society that no other social arrangement offers. It provides a safe and loving environment in which individuals can explore their potential, and be loved and cared for, right through to the end of their lives.”

About a dozen other like-minded, national groups in Canada are also working to promote a similar “social conservative” position, including REAL Women, Marriage Ministries International, the Evangelical Fellowship of Canada, and the National Foundation for Family Research and Education.

Marriage “is the best welfare and educational tool for society. It’s the best institution invented to give children love centred on them,” says Gwen

Landolt, national vice president of REAL Women, a Canadian activist network.

Dennis Roberts, head of the Canadian branch of Marriage Ministries International, concurs. “Children raised in a loving environment that a good marriage provides have fewer problems in school and in society in general.”

Janet Epp Buckingham, general legal counsel for the Evangelical Fellowship of Canada, stresses the more personal benefits of matrimony. “People can plan their lives around the reality of that relationship being there.”

Marriage, she says, can enhance the quality of life by providing “accountability, emotional support, financial interdependency, shared domestic labour, “ and, she quips, “a date for New Year’s Eve.”

Aside from its societal and individual benefits, believers also stress the concept that marriage is divinely ordained. “God created us as social beings, made to reach out to others,” says Mark Genuis of Calgary, founder of the National Foundation for Family Research and Education (NFFRE).

“Biologically, we are social creatures, hard-wired to form emotionally intimate relationships.”

Despite society’s many naysayers, Christian observers insist matrimony is alive and well. “Many marriages in Canada are very strong, happy and positive-and permanent,” says Genuis.

“Marriage is certainly flourishing as an institution,” agrees Gwen Landolt. “People are not being forced to marry by legislation. They do it willingly.”

CHRISTIANS DIVORCING

Though Christian ministries extol marriage as vital and precious, there is evidence that many Christian marriages are failing. Oft-quoted statistics indicate that the divorce rate in the North American Christian community is at least as high as the rate in the secular world-some say higher.

“It is tragic that, according to [pollster George] Barna’s research, evangelical Christians are divorcing at a four percent higher rate than the general population,” asserts Slobodan Krstevski, a pastor who offers Empowering Marriage seminars in Hamilton, Ont.

“This is God’s first institution-and it’s been forgotten by most churches,” contends Mike McManus, author of Marriage Savers (HarperCollins Canada, 1995) and head of a ministry of the same name based near Washington, D.C. McManus says that many believers and their pastors have simply lost touch with the sacredness of marriage.

“In Canada, more than half of couples cohabit before marriage-and churches are saying nothing about it. Most churches are marriage factories; but they have no program at all to strengthen existing marriages,” he says.

Evangelical churches “are failing in this area.” He points to studies in the United States that have shown that “Christian couples with the highest divorce rate are those who attend non-denominational, independent churches.”

Gerry Hiebert, director of Covenant Keepers Canada, a group that works with separated and divorced people, believes that “the church in general is not encouraging their couples to get involved in available programs. In many churches marriages tend to be left to fend for themselves.”

Being a Christian doesn’t make a person immune to the everyday struggles that can afflict a marriage, says Mark Genuis of NFFRE. Every marriage relationship “goes through traumatic and difficult circumstances. That is entirely commonplace.” Couples in conflict have a choice “either to bond even more closely together, or otherwise. Those that bond closer together will reap the benefits and fruits of their labour, as they move beyond their present-day difficulties,” he says.

“Hanging in there and working on it can actually work,” agrees Mary Stewart Van Leeuwen, a Canadian-born psychologist at Eastern College, in St. Davids, Penn. “Only about one-third of divorces happen in high-conflict marriages,” she declares. “Two-thirds of divorces are in low-conflict marriages that could be salvaged.”

Salvaging them involves better communication, she emphasizes, and something more difficult: “Marriage will also involve sacrifice, whether you communicate well or not. Christians must be taught what it means to be ‘one flesh.’ “

Christians “need to recognize the things that have gone wrong, and come up with longer-range plans for developing healthy marriages,” says David Sweet, head of the men’s ministry Promise Keepers Canada. “We want to be able to say to the public, ‘In the body of Christ, marriage is still healthy and joyous.’ “

Many in the Christian community are already working on those constructive, long-range plans.

MARRIAGE THERAPY

A lot of couples are turning to Christian-based marital therapy. Bruce and Linda Bradford are marriage therapists working in London, Ont. In a written response to FaithToday, they give some insight into the complex struggles faced by some Christian couples.

“The way people handle the difficulties they face can vary drastically, depending on how much they see God and their faith as a part of their everyday lives and decision-making processes. Many people who claim that they are Christian and seek out marriage counseling have a very superficial view of what it means to serve and submit to each other.”

Many Christian couples, they assert, “are unprepared for the challenges they face in their own marriages. They feel guilty about their struggles, especially if they involve things like pornography or the Internet. [They] often see themselves as beyond hope, and out of a sense of shame and failure have turned from their faith and stopped practising all the things that brought them closer to God.” Such couples, the Bradfords assert, “need a whole different perspective on how a healthy marriage works.”

Benoit Lapierre, a Montreal-based marital therapist, cites his experiences with a particular Christian couple. “The husband went into a time of depression in his 40s. He was unavailable to his children and wife for about two years. When he would come home from work, he would go into the basement and get more in touch with playing his music than with his wife and children. He was going through a sense of loss linked with how he saw the future, both vocationally and financially.”

The wife, says Lapierre, “felt very abandoned, especially emotionally. She felt as if she was in a dead end. She had a lot of panic attacks, both with and without the husband present.

“I confronted her once with the idea that [these attacks were] the wrong way to attract the husband. She reacted well. She saw that she had control over her panicking. Instead of panicking, she would start to encourage and congratulate her husband for his efforts to connect.”

The husband, Lapierre says, “started to see that his strategy of staying unavailable, of ‘cocooning,’ was adding to his depression. It took a few months for him to see that. Then he really tried to get out of his cocoon, and changed his behaviour when he came home from work-and the wife began to feel more desired. Eventually, they started to have fun together and really appreciated each other’s presence.”

The key factors in healing that marriage, he says, were “the wife’s commitment to the marriage; the fact that they were Christians and really valued marriage very highly; and the fact that they were teachable in therapy. We also prayed a lot. One thing I emphasized in counseling is that the devil tries to separate couples and destroy marriages. It helped them to have the focus of enmity on the Devil and not each other.”

The couple, he adds, were also “committed to their church. They had a sense of accountability. They confessed their problems to church members they trusted. People at church helped them financially.” Also, some other church members lent the use of a cottage, babysat the couple’s kids, and gave them weekends free to be together alone.

The Bradfords also stress the need for committed faith. “Often couples stop praying together as they enter negative cycles of interaction. Many couples blame God for not helping them in some miraculous way. There is also a fear that if this relationship doesn’t work God will expect them to be single forever. This leads to a belief that God doesn’t want them to be happy.”

Such couples, they maintain, “need to be redirected back to their faith and challenged about their new beliefs about God: Are they true and do they line up with the word of God?”

Relationship with God, the Bradfords say, often proves instrumental in healing human relationships. “Couples have written us after therapy ended and talked about the key insights they received through the counseling process-and how God has helped them to renew their vows and commitments in light of his revelation to them.”

MARRIAGE PREPARATION

Many Christians are involved in efforts that they hope will result in couples no longer needing marriage counseling. Churches in various North American cities have established Community Marriage Covenants, declarations signed by church leaders who agree to wed couples only under certain conditions. The first such Canadian agreement was signed in British Columbia in 1997.

“Ten pastors and one priest agreed not to wed couples in Cloverdale without appropriate marriage preparation,” says Barry Collick, head of Canadian Marriage Builders, based in that same Vancouver suburb.

Such efforts will pay off, says Collick. He points out that 75 percent of couples who receive extensive pre-marriage counseling “are quite willing to seek out future marital help if [they are] facing problems at a later time in their marriages.”

Many marriage preparation programs involve “mentoring couples,” people who have learned lessons from their own marital experiences. One Kansas church, Christ Lutheran in Overland Park, claims an astounding success rate with this approach.

“In the four years since we’ve been using mentors, we’ve had more than 60 new marriages, and we haven’t had one divorce,” asserts Jeff Meyers, the pastor in charge of the church’s Strategic Family Ministry. Marriage preparation, he says, helps couples “get past the hormone fog. It gets them to set that aside and to work on issues of friendship and caring for each other-those are the things that will sustain a marriage. We also build prayer into the preparation process. They write out prayers that they pray with and for each other.”

Good, solid marriage preparation, he maintains, “inoculates a couple for four years into the marriage,” according to Getting It Right, a study by the Creighton University Center for Marriage and Family, Omaha, Neb.

MARRIAGE ENRICHMENT

Marriage enrichment programs provide couples with encouragement and practical tools to improve their marriages. Some of these programs focus on restoring couples in crisis.

Michael and Debbie Jamieson of Surrey, B.C. faced such a crisis four years ago. “Michael got romantically involved through the Internet,” says Debbie.

“Fortunately, it was not an actual physical affair. There were also financial problems. He was pushed into a corner and finally had to own up to it. We went to counselors, but it didn’t do any good.”

One day at work, she says, “I picked up a Chatelaine magazine which had an article about Marriage Builders, in Cloverdale. I contacted them, and they hooked us up with a very open and honest couple who had had similar problems to ours and had worked them out. They cared about helping us.”

“I had decided to leave the marriage,” says Michael. “Without that mentoring couple, there’s no way we’d still be together. God obviously brought them into our life. They had a tremendous commitment to us. We met every week for six months. We learned conflict resolution and discussed many things. For example, they’d ask things like, ‘What can your spouse do to show love?’ And Debbie would say, ‘Helping with the laundry,’ which was eye-opening to me.

“I made myself accountable to the mentoring couple. And Debbie and I prayed together a lot.”

The mentors, says Debbie, “showed me that in order to move forward, I had to forgive. Now Michael and I have much better communication, and that includes both good and bad stuff. We don’t keep things hidden, and nothing is taken for granted. Our feelings for each other have rekindled.”

Michael concurs. “We’ve learned to understand and support each other, and we have lots of fun. My dream now is to die in love-not just exist, like most couples.”

Some marriage enrichment programs are aimed at enhancing marriages that are already stable and fulfilling. Some of the more well-established ones include the Family Life Conference, Marriage Encounter, and Retrouvaille (“Rediscovery”), which originated in Quebec.

Lindsay and Cheryl Moyle of Maple Ridge, B.C. attended a Marriage Encounter weekend several months ago. There they learned practical methods for improving communication. Participating couples were instructed to write down their feelings about various concerns and then to discuss what they had written.

“If you write down how you feel about the issue,” says Cheryl, “you are letting the person see right into you and taking the focus off the situation-therefore avoiding blame and the verbal traps a couple can fall into when discussing a problem. I had been the person in our relationship who was prone to acting on my feelings. But if it ever occurred to me to voice my feelings to Lindsay about a problem we were having, it never came out right. I had trouble verbalizing it, and if I did write it, spite and anger would sneak their way into the sentences. Focusing on ‘writing a love letter’ to our spouse about our feelings gave us a whole different perspective on things.”

What they learned during the weekend, she says, “will not miraculously solve the problems that arise, but it will help us to come to a solution or compromise together in a gentler and more effective way.”

MAKING IT WORK

Although many Christian marriage advocates concede that matrimony can be fraught with problems, they are quick to emphasize the positive elements that outweigh and sometimes even obliterate those problems.

“A good marriage gives me a relational environment of trust,” says David Sweet of Promise Keepers. “When I’m experiencing the depths of joy and pain, I’m very unfettered in expressing that and in receiving the same from my partner.”

“Friendship,” says Gwen Landolt of REAL Women, “is the most important thing. If you have that, everything else falls into place. Intimacy and sharing come from friendship. It allows you to open up to each other.” This vulnerability, she adds, leads to true understanding of one’s mate. “When you realize that you haven’t married a paragon, when you realize the faults of the other and love them regardless, then you know the marriage has truly begun.”

A good marriage, researcher Mark Genuis says, involves “a constant focus on demonstrating love and support for your spouse, a constant commitment to putting your spouse’s needs ahead of yours, and a sense of humour.”

Psychologist Mary Stewart Van Leeuwen stresses the need for equality between husband and wife. A self-styled “Christian feminist,” she contends that “evangelical churches have bought into the idea that women are to be angels of the home, and men are to be absentee landlords and captains of industry.”

A healthy marriage, she says, should be modeled on Genesis 1:26-28. “Verse 28 tells man and woman to ‘be fruitful,’ and ‘subdue the earth.’ Both mandates apply to both sexes-and any good marriage will honour the need for both in the couple to satisfy these two impulses: sociability and dominion.”

HOLY MATRIMONY

Above all, Christian observers stress, a deep and abiding faith in God can significantly increase the likelihood of marital success.

“Research has indicated that people of active faith have longer and more successful marriages,” asserts Mark Genuis of NFFRE. “This is true for adherents of various religions, not just Christians.”

“I’ve seen a George Barna study,” adds Kansas pastor Jeff Meyers, “which dealt with couples who made a commitment to pray about various concerns and followed through on it. The study said that less than one percent of those couples have divorced.”

Such insights are reinforced by a 1998 Statistics Canada report by Warren Clark, entitled Religious Observance: Marriage and Family. Clark states:

“The odds of having a very happy marital relationship were 1.5 times greater for those attending religious services weekly than for those who didn’t attend at all. Weekly attenders tend to be more forgiving of marital problems and less likely to cite these problems as a valid reason for ending a relationship.”

“To have the deepest level of satisfaction in marriage, I think you have to include the Creator of marriage,” says Kathleen Leadley, national ministry coordinator of Women Alive, a group that holds seminars on family issues. “Including the Creator means studying the scriptural principles-and not just giving assent to their truths, but also consistently applying those truths.”

Barry Collick of Marriage Builders says that “daily embracing godly principles greatly enhances” the attraction between believing spouses.

“Janet, my wife, feels safe and secure when she sees me asking God for answers relating to our marriage.”

Matrimony between two believers is more stable and satisfying, according to Dennis Roberts of Marriage Ministries International, “providing that both individuals are committed to Christ-to the extent that they are willing to die to self for the sake of their marriage. The number one problem in marriage is selfishness.”

Matrimony, he adds, can inspire behaviour central to Christian faith. “There is no institution on earth that allows more opportunities to forgive than does marriage.”

Darrel Reid of Focus on the Family agrees. “I believe that a loving relationship with Jesus Christ makes a huge difference in a marriage. There’s a loving Father who is infusing and undergirding the relationship between man and wife and children-and providing a moral compass. The attitude Christ had toward His church, being willing to lay down His life for His friends, is a type or symbol of how marriages are meant to be.” Reid concludes by citing Galatians 5:22-23, which tells Christians to cultivate “the fruit of the Spirit,” evidenced by qualities such as patience, kindness, faithfulness, self-control and gentleness.

This instruction, he asserts, “is a message for success in marriage.”

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David F. Dawes lives in Vancouver and is an associate editor of BC Christian News.

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Science Commends Marriage (EFC, 010600)

Although marriage is under attack in many quarters of society today, the overwhelming majority of secular research shows that traditional marriage is more beneficial than any other living arrangement. The following is a brief overview of some of the main themes emerging from widespread research.

Marriage is good for your physical health: Research shows that unmarried individuals are far more likely to die from causes including cancer, heart disease, stroke, accidents and suicide. “Compared to married people, the non‑married have higher rates of early mortality: about 50% higher among women and 250% among men,” says a research review by Catherine Ross (Journal of Marriage and Family, 1990). Married women and men were 30% more likely to rate their health as excellent or very good than their same-age single counterparts (says Linda Waite in The Case for Marriage, Random House, 2000). The unmistakable conclusion gleaned from the research is that married couples enjoy longer and healthier lives.

Marriage is good for your mental health: Marital status is one of the strongest predictors of happiness, according to a 10-year survey of 14,000 adults by James Davis (Social Indicators Research, 1984). Happiness and mental health are directly attributable to being married, and it’s not just that happy people happen to be married, according to Nadine Marks and James Lambert (Journal of Family Issues, 1998). Widespread research has consistently reported that single people struggle more with loneliness, depression, anxiety, low self-esteem, lower self-mastery and are at much greater risk of suicide (American Journal of Public Health, 1988).

Marriage is good for your sex life: A popular myth is that nothing kills sexual satisfaction better than marriage. Research shows just the opposite. Married individuals have more sex than their single counterparts and report greater levels of sexual satisfaction, concluded Edward Laumann after interviewing 3,500 American adults (The Social Organization of Sexuality, Univ. of Chicago Press, 1994). Individuals who are reporting the highest levels of sexual satisfaction are married and in their 50s-60s, reports leading sexologist David Schnarch. His conclusion is that sexual fulfillment is dependent upon the kind of emotional intimacy found in committed stable relationships (Constructing the Sexual Crucible, Norton, 1991).

Marriage provides more safety and stability: People in common-law relationships are at higher levels of risk to experience emotional, physical and sexual abuse, according to a research survey by Canadian sociologists Larsen, Goltz and Monroe (Families in Canada, Prentice Hall, 2000). Statistics Canada concurs: “The risk of being a victim of spousal violence was also much higher for women and men living in common-law unions. About 4% of those living in a common-law union reported spousal violence during the 12 months before the survey, compared with 1% of those who were married” (Family Violence, 1999). Furthermore, cohabitation does not lead to greater marital stability, but has the opposite effect. “Starting conjugal life in a common-law relationship, as opposed to a marriage, sharply increases the probability of this first union ending in separation. And whether the common-law partners eventually marry or not makes little difference: the risk of separation is just as high,” according to Celine Le Bourdais and her colleagues (Canadian Social Trends, Spring 2000).

Marriage is good for the welfare of children: No one has done more on studying the effects of divorce on children than clinical psychologist Judith Wallerstein. She began her research in the 1960s fully expecting to find that divorce would have a positive effect on children. She found just the opposite. After three decades of research she is even more convinced of how important marriage is to the well-being of a child. Based on her research she believes that even when marriages are bad, they have a more positive effect on children than divorce does (The Unexpected Legacy of Divorce, Hyperion Books, 2000). Widespread research overwhelmingly suggests that children who are raised by two parents in a committed marriage fare far better in academic ability, social adjustment, physical and mental health and have more stable marriages themselves than their peers who come from broken homes. Having a strong marriage is truly the most important factor in raising happy, well-adjusted children (as is pointed out in chap. 7 of Miles Corak [ed.], Labour Markets, Social Institutions and the Future of Canada’s Children, Statistics Canada, 1998).

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Mark Davies is professor of family ministries at Carey Theological College/Regent College in Vancouver.

For further reading:

Note: any bookstore can order these books for you if you give them the ISB number.

The Case for Marriage: Why Married People Are Happier, Healthier and Better off Financially. By Linda Waite and Maggie Gallagher (Random House, 2000). ISBN 0-38-550085-8.

Families in Canada (2nd ed.). By Brenda E. Munro, Lyle Larson, and J. Walter Goltz (Prentice Hall, 2000). ISBN 0-13-927310-7. (Goltz is professor emeritus at North American Baptist College in Calgary.)

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In Need of an Amendment: Defending the valued institution of marriage (NRO, 010723)

By NR editors

For all the progress that homosexuals have made in public opinion, “gay marriage” remains deeply unpopular. In 1996, the federal Defense of Marriage Act — defining marriage as a union of a man and a woman for purposes of federal law, and allowing states not to recognize gay marriages formed in other states — passed the House with 342 votes and the Senate with 85. Polls find solid majorities against same-sex marriage. Even in socially liberal California, a ballot initiative to block gay marriage passed with 61 percent of the vote last year.

Yet gay marriage may be on its way whatever the people think. Gay activists are working through the courts to force gay marriage on an unwilling public. Their game plan is perfectly clear: Get a court somewhere, anywhere — in Hawaii, in Vermont, wherever they can win — to impose gay marriage. Then use courts to force other states to recognize that state’s same-sex marriages. Then get states that recognize out-of-state gay marriages to start letting such marriages be formed in-state.

Politicians seeking to avoid controversy — including, notably, Dick Cheney in last year’s vice-presidential debate — have pretended that whether gays should be allowed to marry each other is a matter that can be left to individual states to determine. But this is willfully naïve. There is no popular demand for gay marriage in any state. What is going on is an attempt to use the judiciary of any state to override the wishes of the people of that state, and then of the entire Union. It is an attempt that should be stopped by a constitutional amendment.

Constitutional amendments are not to be proposed lightly. The Constitution, wisely, makes them difficult to enact. Conservatives, in particular, favor stability in the nation’s basic law. But the judicial campaign for same-sex marriage leaves constitutional amendment as the only sure way to prevent a harmful and antidemocratic revolution in American law. Thirty-four states have passed laws that seek to preserve the understanding of marriage as the union of a man and a woman — enough to call a constitutional convention for the purpose of an amendment, and close to enough to ratify one. To defend a valued institution, an institution the importance of which can hardly be overestimated, from what amounts to an ideological attack is a cause that all conservatives should support.

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Poaching On The Left’s Turf: The Marriage Amendment (Free Congress Foundation, 020517)

By Connie Marshner

The Washington Post prides itself on being the nation’s “newspaper of record”. Well guess what? The Post missed something big this week.

On Wednesday, May 15, 2002, the Marriage Amendment was introduced in Congress, but you would never know it from reading the next day’s Post. The folks who put the Marriage Amendment together did such a good job building their coalition that the Post didn’t know how to cover them.

The text, like that of all constitutional amendments, is simple: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

Translation: only opposite genders can marry. And the federal courts can’t say otherwise. Once this amendment becomes law, the next time a group of citizens gets themselves organized enough to defeat a “civil unions” initiative, whether in a state legislature or by referendum, the courts can’t undo it.

In other words: Even if it hasn’t seemed like it lately, the people run this country, not the courts. It’s called democracy. You know, representative government. Unlike judicial oligarchy, or rule by judges.

Who’s against democracy?

Well, you’d be amazed. NOW called the Amendment a “cold-hearted attempt to make the U.S. Constitution explicitly anti-lesbian and gay rights.” To which Matt Daniels, the President of the Alliance for Marriage replies:”Gays and lesbians have a right to live as they choose. But they don’t have a right to redefine marriage for our entire society.”

ACLU spokesman Christopher Anders yesterday said the amendment would “wipe out every single law protecting gay and lesbian families and other unmarried couples.” Last summer, when the idea of the amendment had first surfaced, the ACLU had sharpened its pencil if not its wits, and written that the amendment would “reverse the constitutional tradition of protecting, not harming, individual freedoms.”

Wrong on the first count: The amendment, if enacted, would not change a single law. It provides merely that, if citizens do manage to change a civil union or domestic partnership law, the courts can not trump the legislative body. Can you understand the difference, ACLU? This amendment would actually give back to citizens the authority to change their laws. It would take some authority away from the petty nobility known as judges. Shades of Tom Paine and Ben Franklin!

Wrong on the second count: All the amendment does is prevent people like the ACLU from hijacking the word “marriage” and applying it to any assortment of beings they want. Think of this as the anti-Humpty Dumpty amendment: Words actually do mean something, not just what Humpty-Dumpty says they do. And the word “marriage”, if this amendment is enacted, will mean whatever states say it means, but not for two people of the same sex.

The amendment actually enhances the individual rights of citizens to get their voices heard through their legislatures. Now, that may be a voice the ACLU doesn’t like: The standard liberal, elite route to victory in American governance and politics for the past several decades has been to go into the courts. The marriage amendment is a threat to judicial usurpation, not to individual rights.

It’s obvious why the Washington Post wouldn’t want to cover the Marriage Amendment for ideological reasons, but a liberal reporter also wouldn’t know what to do with the coalition behind this amendment. You see, the press conference put together by the amendment’s chief champion, Matt Daniels, didn’t fit into the usual pigeonhole of “traditional values types.”

Usually, when anything is introduced in Congress that supports traditional values, the legislation is sponsored by “the usual suspects,” the press conference is held by “the usual suspects,” and what is said is fairly predictable. Not so with this issue.

The sponsors of this amendment are equally Democrat and Republican, and the spokesmen at the press conference included Presiding Bishop George McKinney of the Church of God in Christ, one of the largest African-American denominations in the world, Dr. Patricia DeVeaux, Supervisor of Missions of the African Methodist Episcopal Church, and Dr. Jesse Miranda, head of the Alianza de Ministerios Evangelicos Nacionales.

One of the spokesmen was Rev. Walter Fauntroy, head of the National Black Leadership Roundtable, who got lots of space in the Washington Post back when he played a leading role in organizing Martin Luther King’s 1963 March on Washington.

Then, to confound the stereotypes even more, endorsements came in from Agudath Israel, from the Union of Orthodox Jewish Congregations, and, even two Catholic cardinals (Bevilacqua of Philadelphia and George of Chicago). What’s a liberal to do when confronted with such an alliance?

Well, in a few days the homosexual militants will have regrouped and come out with their counterattack. The Left will be going after Matt Daniels with a vengeance, because he is poaching on their turf. The Left acts as if it owns African-Americans and Latinos, and wraps itself in claims of cultural diversity when it really means moral relativism.

Matt Daniels has called their bluff by assembling this impressive coalition. The Washington Post missed its chance to be the first to cover a new leader.

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Marriage: The Bad News Drowns Out The Good News (Free Congress Foundation, 021114)

By Paul M. Weyrich

Tonight, PBS airs a Frontline report called “Let’s Get Married” that takes a look at the state of marriage in the United States. Advance publicity about the program has stated that it will say marriage is in trouble and that its decline has brought about dire “public consequences.” Well, let’s reserve judgment until we see the program on liberal PBS as to whether it really takes the strong line that needs to be asserted in defense of the traditional marriage. Just in case they don’t, I will.

True, most of the current news about marriage is bad. The prevalence of divorce in today’s society is troubling. The divorce rate has had its dips at times, but try consoling a child whose parents have split with statistics. Then, there is the rise of the so-called co-habitating couples who simply choose to live together, usually breaking up time and time again. Only one thing can be worse than the popularizing of the idea that children need only one parent to raise them, rather than two people, united by matrimony, performing the traditional roles of mother and father. That is the same sex ‘couple’ that insists on raising children.

But not all is bad news, and some recent good news deserves attention too.

The rate of married teenagers has been in steady decline since the 1950s. However, the 2000 Census showed a different finding. Their numbers had actually increased during the last decade. In 1990, married teens between the ages of 15 to 19 represented just 3.4 percent of the young population. Now, it’s 4.5 percent.

David Popenoe of the National Marriage Project at Rutgers University offered this explanation to The Washington Post: “There’s been a slight trend toward conservatism among teens, less premarital sex, more fear of disease…It could conceivably have something to do with welfare reform But it’s a surprise.” There is also more promotion of marriage in some churches, and “Let’s Get Married” looks at the State of Oklahoma’s own efforts to do so.

What I hope is that today’s young married people already know, or learn in the nick of time, that the true key to success as a couple will be the values of loyalty and commitment. I wasn’t all that much older than the teens in the Census statistics when I married Mrs. Weyrich, but we have been able to stay together for almost forty years because we have a mutual commitment. One thing that we have been fortunate to share together over the years has been the raising of our family and, now, watching our children’s children grow up. But in the culture of today, when divorces are the one thing too many married couples have come to agree upon, it’s tough to be very optimistic about the state of marriage.

Another good piece of news, definitely not Politically Correct, but certainly welcomed by social conservatives, came on election night when Nevadans voted in favor of Question 2, which would amend the state constitution to say marriage is legal only for heterosexual couples.

Much of Nevada’s economic success has been predicated on gambling, and it is often thought to be libertarian on social issues. But thank heavens the Gambling State’s voters were wise enough not to take the crapshoot of voting this amendment down.

The Congress passed the Defense of Marriage Act (DOMA) in 1996 that defined a legal marriage in federal law as a “legal union” between one man and one woman who were husband and wife. No state would be forced to recognize same sex marriages because other states had done so. DOMA cut off at the pass an attempt by homosexual rights advocates to use the Full Faith and Credit Clause in the U.S. Constitution to force recognition of same-sex couplings. However, the states themselves have to make the effort to recognize the sanctity of the traditional marriage to forestall the homosexual movement from trying to foist its agenda on them one by one.

In fact, the pro-family advocates in Nevada felt a constitutional amendment would be a wise preventative action because homosexual activists have been shopping to find courts to rule that same sex couplings are legal.

The more that sanction is given to alternative couplings as ‘marriage,’ then the more the traditional and only true institution of marriage will be undermined. I do not mean just at the marriage clerk’s office either. I am talking about school textbooks that will teach homosexual unions are marriage, and churches that have forgotten their true Christian heritage by allowing homosexual couplings to be sanctioned as marriage.

Maintaining the definition and the practice of marriage in its traditional form is every bit as important to the future of our country as ensuring that we have the weapons necessary for our national defense. Marriage is the cornerstone of our society and its values. Two parents are necessary to raise children and to pass their faith and values down to them.

The corrosive values now prevalent in our society have undermined our country enough already. Weakening the definition of marriage in Nevada would have sent the wrong message to too many people, particularly those who do not believe in traditional and true matrimony and those who think gay is okay.

I only wish that I could be more optimistic about the state of marriage. Certainly, the glimmerings of good news should be welcomed. But I fear we end up having to take a lot of the bad with too little of the good. Even the positive news I just shared is troublesome. In the 1950s, for instance, we never could have imagined that Nevada voters would have to resort to amending their Constitution to define marriage as a union between a man and a woman.

It would be good to think that the pendulum is swinging back, moving decisively back toward those values, including a respect for the institution of marriage, that once made the majority of American lives meaningful and complete. Unfortunately, I only wish that there would be even better news to share with you about marriage. That is not the case and I fear what that means for the future of our young people and our country.

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Single Hope: A conversation on love and marriage with Barbara Dafoe Whitehead (NRO, 030214)

A Q&A by Kathryn Jean Lopez

Barbara Dafoe Whitehead, a sociologist who co-directs the National Marriage Project at Rutgers University, is probably best known for having written the article “Dan Quayle Was Right” in the April 1993 Atlantic Monthly. Her latest book is Why There Are No Good Men Left: The Romantic Plight of the New Single Woman. We asked her to some Valentine Day questions on the state of singles in America.

Kathryn Jean Lopez: The title of your latest book — Why There Are No Good Men Left — suggests that men might have the bulk of the “issues” when it comes to getting married, is that the case?

Barbara Dafoe Whitehead: The title of my book is based on a perception that is widely held among marriage-minded single women between the ages of 25-35. Empirically, the perception is false. The vast majority of young women, especially college-educated white women, will marry at least once in a lifetime, presumably because they’ve found a good man. However, there are important reasons why women feel unduly pessimistic about their chances, and the book identifies them: They begin a serious search for a husband at an older age, when they have less time left on their biological clock. A pool of suitable single men is harder to locate, once women are in the work world and beyond the college campus. And even some of the suitable men are in no great hurry to marry, given the pleasures of the single life and their opportunities to enjoy many of the sexual and domestic benefits of marriage by living with a girlfriend. And these are only a few of the reasons explored in the book.

Lopez: You argue that “social forces have changed the timetable and course of love”? In general, is this good or bad?

Whitehead: In general, for women, it’s good. They are able to finish college, get further professional or graduate training and establish themselves in their chosen careers. They are better armored against the economic fallout of divorce in today’s high divorce society. And college-educated women who marry at older ages than the college women of the 1960s are likely to have stronger and longer-lasting marriages. However, until we have a courtship system that reflects this new timetable, there is a downside: The search for a husband is likely to be a rocky and lonely “do-it-yourself” project, unsupported by the larger society.

Lopez: Do you think The Bachelor/The Bachelorette/Joe Millionaire are really about courtship? Isn’t it just people looking for fame and fortune?

Whitehead: I think you have to distinguish between the “actors” and the audience. Clearly, Trista (The Bachelorette) and Evan (Joe Millionaire) are after fame and fortune, not a serious courtship leading to marriage. Still, I would argue that the popularity of these admittedly schlocky shows, and particularly The Bachelorette, tells us something about the audience and its yearning for the ordered rituals of romantic courtship.

Lopez: Not to sound like the guys in Sleepless in Seattle, but most single women over 30 today — will they wind up married? With Children?

Whitehead: Yes. And yes. But for women who marry at older ages, it may be “a child” rather than “children.” For educated married women, the birth rate has been falling and is likely to continue to do so.

Lopez: Egg freezing, IVF — how deep an impact are these having on the timetable and course of love and marriage?

Whitehead: Some women have used these technologies to extend their natural biological clock. But so far, these women are the exception rather than the rule. There isn’t any evidence that assisted reproductive technologies offer a surefire way to achieve motherhood. Nonetheless, many women are deluded into thinking so. And efforts by specialists in reproductive medicine (mostly women) to remind women of the fertility factor have been met by furious condemnation by NOW.

Lopez: Do you anticipate any backlash on the horizon? Folks getting married younger en masse, rejecting cohabitation, etc?

Whitehead: Educated single women are less likely to cohabit than those with lower levels of educational attainment, a reversal of the pattern in the 1970s and 1980s. I expect this trend will continue and perhaps lead to a rejection of cohabitation among more educated women. No evidence to date of a return to earlier patterns of marrying at younger ages.

Lopez: To singles on Valentine’s Day, what’s your best advice?

Whitehead: If you are a married-minded woman, over the age of 25, be confident of success but be mindful of time and don’t waste it on low-commitment cohabiting relationships.

Lopez: Would you have any different advice for men?

Whitehead: Though I’m not in the advice business, here’s what I might say to men, or at least to my 23-year old son: If you’ve found the woman you want to marry and you want to have children with her, respect her timetable and plan marriage accordingly. If you are over thirty, still looking for the right woman to marry, and wondering what smart thirtysomething women really want, consider this: Many smart women in their thirties are looking for a worthy man who is able to engage in a relatively short but serious-minded courtship with marriage as a possible goal.

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That Other War: Where the moral debates are (NRO, 030509)

Stanley Kurtz

The William Bennett flap raises some interesting and important questions about the moral state of our nation. What does morality mean in America today? Can there be a truce between our competing cultural camps? At the moment, America is uneasily suspended between the moral system of the Fifties and the radical impulses of the Sixties. We are caught in the middle. Despite all the problems, though, the middle may not be so bad.

CULTURE WAR

Why is there a culture war to begin with? Why did the old moral consensus break down? It’s because we live differently now. Human beings can’t live together in peaceful and stable social groups without moral rules. Yet the more we live as independent individuals, instead of as members of tightly knit communities, the less we want or need moral rules.

After World War II Americans moved out of small towns and tightly knit ethnic neighborhoods, and into relatively impersonal suburbs and urban apartment complexes. (This story is told especially well in Alan Ehrenhalt’s book, The Lost City.) And after World War II, many more Americans spent the years after high school away from home at distant colleges and post-graduate schools before finally marrying and starting families. All this brought more isolation, but also more freedom.

Our relative independence of others is the key to the rise of the new social liberalism. Yet, no matter how independent we get, the ineradicable fact of childhood dependence creates demands for a stable family structure governed by certain moral rules. This is the root of our contemporary culture war. Our lived individualism continually pulls us toward a full-fledged libertarianism, while our childhood dependence exerts a countervailing pull toward moral traditionalism.

Our new social situation forces us into the unstable and conflicted moral middle ground we now inhabit. Unless we find a way to reconstitute the old small towns and ethnic neighborhoods (or some modern equivalent), we shall never be able to fully reestablish the moral system of the Fifties. The Sixties ethos, on the other hand, if taken to its logical conclusion, is unlivable. That’s why the communes broke down. The hippy communes tried to combine group solidarity with total personal freedom. The result was chaos. Likewise, the extremes of drug use and political violence in the Sixties led to a kind of individual and collective meltdown, for the hippies and the activists alike.

So we are continually pulled in the direction of two opposing moral systems, neither of which can be fully or consistently lived out. That means we’re going to be stuck in between the Fifties and the Sixties for some time to come. There will be moments when one or the other moral outlook is stronger. But neither side of the culture war will be able to definitively win. (For a more on this view, see “Wishing Away the Culture War,” my review of Alan Wolfe’s, Moral Freedom.)

COHABITATION

Let’s apply this framework to the issue of cohabitation before marriage. Clearly, from the perspective of the Fifties, cohabitation before marriage is wrong. In fact, cohabitation was once called, “living in sin.” William Bennett is a critic of cohabitation, even though he realizes that there is very little public criticism of the practice nowadays. In his book, The Broken Hearth, Bennett correctly points out that the trial period of cohabitation doesn’t really lead to better and more stable marriages. If anything, cohabitation tends to undermine marital stability. Bennett is right about the social costs of cohabitation, but clearly the practice grants individuals greater personal freedom.

Although I agree with William Bennett about the social costs of cohabitation, I think that in this case, the gains in personal freedom are worth the cost. But what really tilts the balance in the case of cohabitation is the way we now live. As Kay Hymowitz points out in, “The Cohabitation Blues,” her excellent discussion of cohabitation in the March, 2003 issue of Commentary, it’s the extended post-adolescence of young professionals who delay marriage for education and apprenticeship that has driven our shift to cohabitation. Unless the underlying social and economic situation changes, it will be impossible to go back to the moral system of the Fifties.

So on this issue, as on many aspects of our general post-Sixties sexual loosening, I disagree with William Bennett. But does our inability to return to the sexual system of the Fifties mean that anything goes? No. To be sure, there are forces pulling us in the direction of “anything goes.” The recent, radical and, I think, very ill-advised proposals of the influential American Law Institute are a specimen of the problem. The American Law Institute wants the law to equate marriage and cohabitation. That would effectively undermine the special significance of marriage.

As Hymowitz points out, despite the rise of cohabitation, most individuals do eventually marry. And most of them see marriage as a qualitatively different step than cohabitation. Above all, most Americans still believe that couples should marry before having children. Cohabitation is indeed unstable, and it would be foolish to disrupt families with children by erasing the distinction between cohabitation and marriage. (See Hymowitz for more on the ways in which cohabitation can harm children.)

Hymowitz, who does not oppose cohabitation, but doesn’t want it legally recognized either, articulates the kind of measured and grounded middle position that makes sense in our current environment. Because of the way we now live, the balance between family stability and personal freedom has shifted. While the costs in family stability of our new more liberal sexual system are serious, the benefits in freedom are also real. Above all, the possibility of going all the way back to the old social-sexual mode is exceedingly remote. But that doesn’t mean that marriage is unnecessary, or that we ought to move to a system inspired by the full radicalism of the Sixties. There is a middle ground position-albeit an imperfect one. And the need to draw a line to prevent a slide into the most socially liberal position is dictated, above all, by children’s need for family stability.

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Divorce-on-Demand: Forget about gay marriage — what about the state of regular marriage? (NR, 031027)

DENNIS E. POWELL

Much has been made, and rightly so, of the campaign to permit marriages between persons of the same sex. But even if that campaign were to succeed, its proponents would likely find their victory a hollow one. That is because marriage as an institution has been so thoroughly dismantled and devalued that today it carries just about the same moral weight as — and somewhat less legal authority than — a contract for cellular-phone service. In most states, according to the Rocky Mountain Family Council, it’s easier to get out of a ten-year marriage than it is to be rid of an employee hired one week ago.

I have recently gained the ability to comment advisedly on the subject, for my marriage is the target of a modern “no fault” divorce. As it has unfolded, I have discovered how my state — Connecticut — has done all it can to make ending a marriage easy, while making little or no provision for preserving it. In Connecticut, as in other states, “no fault” divorce means “divorce because it suits the mood of at least one partner.” The state has produced an official publication, the “Do-It-Yourself Divorce Guide” (available online here), to make getting a divorce as simple as mounting a defense against a speeding ticket — even if your spouse has no interest in divorce.

Especially if your spouse has no interest in divorce. The “Do-It-Yourself Divorce Guide” offers everything one needs to know to obtain a divorce, but no guidance as to how one who opposes a divorce might respond. There is plenty on how to battle for a bigger piece of the marital corpse and on getting court orders of alimony, child support, custody, and exclusive use of the family home. There is no mention of another pre-judgment court order (a pendente lite, as such things are called) available under the law, in which the court may order two sessions with a marriage counselor or other person trained in the resolution of disputes within families. This unmentioned provision is the law’s sole nod to the preservation of the marriage.

Filing for divorce, the guide notes, is a simple matter. Fill out a couple of forms, take them to the court clerk, and have copies delivered to your spouse by a process server. The divorce complaint, the second of the forms (the first is the summons, common to all lawsuits in family court), requires the grounds for the divorce to be stated as follows:

A divorce is being sought because: (Check all that apply)

This marriage has broken down irretrievably and there is no possibility of getting back together. (No fault divorce) [Bold in original]

Other (must be reason(s) listed in Connecticut General Statute § 46b-40(c))

The copy of the form served on me by State Marshal Frank R. DeLucia has the first of these choices selected. To demonstrate how meaningless the sentence is in practice, a little background is necessary, using my case as an example.

DOING IT HERSELF

When on the morning of May 7 my wife seemed troubled, I inquired as to why. She was at first reticent, but when I persisted she said, “I want us to be good friends but not married anymore.” I was stunned.

My wife — she is still that as of this writing — is an attractive, intelligent, educated woman, a lawyer who graduated with honors from an Ivy League law school. She has no passion for the law, and her chief concern, or at least the one she has chiefly voiced, is that as a writer I do not make enough money to pay the bills and, ultimately, allow her to quit her law-firm job. Ours was (is?) a marriage that by many standards would not seem unduly troubled at all. Sure, there have been the occasional bumps, but they certainly did not result in either physical or verbal abuse, or even much raising of voices. Mostly, it has been warm and — I thought — happy. Still, my wife thought (and thinks) that divorce is the only answer. I disagree.

Connecticut has a remedy for such disputes: As long as either party wants a divorce, for any reason or for no reason at all, then divorce it will be. The law insists on dissolution of marriage whenever divorce is proposed. The governing case, as the “Do-It-Yourself” guide so helpfully points out, is Eversman v. Eversman (1985), in which a Connecticut appeals court found that “the fact that the defendant maintains hope for reconciliation will not support a finding that there are prospects for a reconciliation. . . . A difference, to be irreconcilable, need not necessarily be so viewed by both parties.”

The effect is to transform divorce from the last resort, as it was before Connecticut passed Public Act 73-373 in 1973, into the first choice. Interestingly, commentary published on the new law at its passage suggests that the “no fault” provision was added for those who agree to divorce. Eversman made short work of that notion.

(It can sensibly be asked why anyone would wish to stay in a marriage in which one spouse wants out. The answer is revealed in the findings of a long-term study on the subject, released in 2002 by the Institute for American Values, in which researchers found that “unhappily married adults who divorced were no more likely to report emotional and psychological improvements than those who stayed married. In addition, the most unhappy marriages reported the most dramatic turnarounds. Among those who rated their marriages as very unhappy, almost eight out of 10 who avoided divorce were happily married five years later.” Other surveys show that the vast majority of married people contemplate divorce at one time or another. The ease of divorce today increases the likelihood that those persons will follow the divorce route rather than solve marital problems.)

The “defendant”—in most cases the party who doesn’t want a divorce — is instructed that he or she may file an “appearance.” This means only that the defendant will be informed of filings and events in connection with the case. The defendant may file a “cross complaint,” the sole purpose of which is to make the other person a defendant, too. Or he may file an “answer,” and it is here that the absurdity of “no fault” divorce becomes especially apparent. Given the presence of two parties — a plaintiff who seeks the dissolution of the marriage and a defendant who very likely does not — one would suppose that there might be some means for the defendant to, well, defend himself. There isn’t.

Connecticut’s “answer” form comprises, chiefly, a grid of four columns: “Paragraph No.,” “Agree,” “Disagree,” and “Do Not Know.” The last three columns contain check boxes. The instructions are: “Number each line in the chart below to match the numbered paragraphs in the Complaint or Cross-Complaint (example: 1, 2, 3, 4, 5a, 5b). Use as many lines as you need. For each paragraph mark an ‘X’ for Agree, Disagree, or Do Not Know.” The complaint filed against me pointed out that 1) we are married, 2) we were married in Stockbridge, Massachusetts, on October 25, 1997, and so on. My lone disagreement was with Paragraph 5 (“This marriage has broken down irretrievably and there is no possibility of getting back together.”) But as Eversman v. Eversman informs us, the court doesn’t care about that.

The rest of the answer form is a checklist of things that the defendant might want to ask the court to order. These include alimony and child support, and, in a throwback to the final line in so many letters to Santa Claus, “anything else the court thinks is fair.” Looking for and finding no item to the effect of the court’s ordering that “You people go home and grow up and work it out and stop wasting the court’s time,” I didn’t check any boxes. This may well mean that my answer is invalid, in that I asked for no court orders. By filing an answer at all, the “defendant” only returns fire in the dispute, with the effect that the expected surrender turns into a war, even though the defendant can fight only on symbolic grounds, the outcome being predetermined.

A hearing is then scheduled. Among the subjects covered is “whether the grounds have been proven (which they always are!),” says Ct-Divorce.com, a website sponsored by a Greenwich matrimonial lawyer.

THE COLLAPSE OF AN INSTITUTION

In 1997, the percentage of first marriages that ended in divorce was 50 percent. The median duration of a marriage was 7.2 years. This according to “DivorceMagazine.com” (yes, there is such a thing, with the slogan “help for generation ‘ex’”). It wasn’t always so.

In America, divorce used to be difficult to obtain and, usually, impossible without good reason: adultery, abandonment, abuse, alcoholism. In 1880, according to the historian Robert L. Griswold, one marriage in 21 — fewer than 5 percent — ended in divorce. Over time, there have been peaks and valleys in the divorce rate, such as the period immediately following World War II, when returning soldiers found things rather different from how they had left them, or were themselves tremendously changed by war. “But beginning in the mid-1960s,” writes Griswold, the divorce rate “again began to rise dramatically, fueled by ever-higher marital expectations, a vast expansion of wives moving into the work force, the rebirth of feminism, and the adoption of ‘no fault’ divorce (that is, divorce granted without the need to establish wrongdoing by either party) in almost every state.” Griswold continues, “The last factor, although hailed as a progressive step that would end the fraud, collusion, and acrimony that accompanied the adversarial system of divorce, has had disastrous consequences for women and children.”

Maggie Gallagher expanded upon the injustice of “no fault” divorce in her 1996 book, The Abolition of Marriage: “Divorce is usually not the act of a couple, but of an individual. Eighty percent of divorces in this country are unilateral, rather than truly mutual, decisions. The divorce revolution has not, as is usually claimed, produced a straightforward increase in personal freedom. Rather the divorce revolution can be more accurately described as a shift of power, favoring the interests of one party over those of the spouse who is being abandoned and over those of the children whose consent is not sought.”

Like so many things that seemed a good idea at the time and that swept the nation with disastrous results, “no fault” divorce popped up first in California, where it was passed into law in 1969 and signed by Gov. Ronald Reagan. A provision that would have required counseling in contested cases and cases involving children did not make it into the law, which introduced the now-familiar phrase “irreconcilable differences” and which made divorce glamorous and trendy.

In our popular culture the marriage vows now might as well be “as long as the money is good, my spouse’s health is not a burden, I don’t find someone I like better, for so long as it suits my mood.” A matrimonial lawyer in New Canaan put it tragically succinctly: “Marriage is an anachronism. It’s a tax status. Nothing more.”

No, it is something more, or has become something more. It has become another place where one is freed of the consequences of a decision. Honesty would be served if the first part of every wedding service were, “Ladies and gentlemen, what is about to unfold is devoid of any actual meaning, except perhaps as the prelude to some acrimonious financial transactions.”

“After all,” the New Canaan lawyer continued, “people are doing everything outside of marriage that can be done inside marriage. They are in committed relationships”—where either party can walk away on a whim, which used to distinguish such relationships from marriage—”they are buying homes, having children . . .” And he is right, though it is scarcely something to say with pride. There used to be things unique to marriage, but those that remain are few and technical.

My conversation with the lawyer cost me $400. Such “consultations” used to be free or very cheap. But a good friend, a matrimonial referee in Westchester County, New York, tells me that this has itself been abused. “In areas such as Westchester and some counties in Connecticut, people preparing for divorce would have consultations with all the good divorce lawyers,” he explained. “This would create a conflict that would prevent the other spouse from retaining any of those lawyers once the divorce was filed. So they began charging a significant fee for consultations.” The purpose of a lawyer for the defendant is solely to provide representation in arriving at a settlement — division of property and debts, and handling of the children, if there are any. It is not to challenge the premise of the lawsuit, or to suggest that this divorce might be a bad idea.

Which brings us to the bitterest irony in “no fault” divorce. In the old days, a spouse seeking a divorce just because he or she felt like having one needed to persuade the other spouse to play along. A husband wanting a divorce, for instance, would persuade his wife to file for divorce under a phony claim of fault (often “extreme cruelty”); a woman seeking a divorce might talk her husband into offering no defense against her charge of “extreme cruelty.” This was Griswold’s “fraud, collusion, and acrimony,” and it was the leading argument in favor of establishing “no fault” divorce. The effect of “no fault” divorce, however, has been to shift those desperate measures to the spouse opposing a divorce, he or she having been stripped of any other means of saving the marriage. (For example, the spouse seeking a divorce has always been able to say, “If you refuse, I will make your life hell.” The argument available to the defendant today is limited to pointing out that the divorce can be made very expensive.) The measures that were so effective in persuading a recalcitrant spouse to go along with a divorce are adversarial in nature; they were effective in breaking up marriages but are useless now that the scales weigh in favor of divorce. If a marriage is not “irretrievably broken down” at the beginning of the process, it is likely to be before the smoke clears.

Across the board, in society and in the law, marriage has become a not-very-funny joke. It solemnizes nothing, signifies nothing, carries no weight, and can be left virtually for the asking. Add marriage to the institutions where one’s decisions, actions, and commitments are escapable without much consequence.

ILL AFTER ILL

Yet even for those who believe that marriage is a worthless institution, there are some hard facts that suggest that the law should tilt toward the preservation of marriage. For instance, every study on the subject that I can find demonstrates that divorce increases the likelihood of premature death among spouses on both sides of the lawsuit. Among divorced men, the death rate from high blood pressure and heart attack is double that of their married neighbors; from pneumonia, the rate is seven times as high. The suicide rate among divorced men is four times that of married men. A 1988 study of 20,000 women found that married women were far less likely to become ill than their divorced counterparts, and that, statistically, marriage proved “more important to these women’s health than age, education, and family income.”

Divorce also fuels poverty. Statistics prepared in 1992 show that more than half of the single-parent households headed by women are below the poverty line. Some of these women, of course, were never married — another accomplishment to which modern society can point with pride — but single motherhood is the likely result when half of all marriages end in divorce. On average, divorce leads to a 30 percent reduction in income for women and a 10 percent reduction in income for men.

How to respond to these data? The clear conclusion is that it is in society’s interest to declare marriage a good thing and to seek its preservation. But that was known all along; today, the likely reaction would be to call for new and expensive government programs that will seek (and fail) to cure these ills. (Originating, probably, in California!)

Some argue that the “no fault” experiment has failed and that the time has come to return to a more traditional view of marriage. Maggie Gallagher has proposed a waiting period of several years for a divorce. A few states have introduced legislation that seeks to make it more difficult to get a divorce on a whim. Others have proposed mandatory counseling. But there has not exactly been a rushing wave of support for divorce reform. There are many who raise their voices against the idea of marriage among same-sex partners. I agree with them. Marriage ought to be between a man and a woman. But marriage ought to be a lot of things it once was but no longer is. Keeping marriage heterosexual may be a good idea, but it has meaning if and only if it is part of defending marriage from the multitude of assaults that have left it a withered, beaten shell of its former institutional self.

Until then, the chief question pertaining to gay marriage is, “Why would they bother?”

Mr. Powell is a freelance writer, currently at work on a history of the space-shuttle program.

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Marriage Amendment Jitters: The social Right tries to get it together (National Review, 031124)

RAMESH PONNURU

Sandy Rios, the president of Concerned Women for America, was pounding the table. She was at an October 1 meeting of social-conservative activists and the leading Republicans in the House and Senate. Some Republicans were worried about the activists’ project: amending the Constitution to prohibit same-sex marriage and, possibly, civil unions as well. Rios said that social-conservative groups were energized as never before. “The grassroots will get motivated and members will have to vote for it,” she said. “We will take out squishy Republicans.”

Now that’s confidence. Passing a constitutional amendment is difficult in the best of circumstances. Supporters of a Federal Marriage Amendment will have to get two-thirds of the House, two-thirds of the Senate, and three-quarters of the state legislatures to vote for it. If all the Republicans in Congress vote for the amendment, it will still need the support of 16 Senate Democrats and 61 House Democrats. That’s a tall order. Especially when you consider that, until recently, social conservatives had not even been able to get two-thirds of their own organizations on the same page.

The social-conservative groups have been united in the belief that something must be done to prevent state and federal judges from imposing same-sex marriage on the country. They were alarmed when the Supreme Court struck down sodomy laws in the spring — not so much because they supported those laws, although many of them did, as because they thought that the Court’s reasoning would in time lead it to redefine marriage. They expected that the Massachusetts supreme court would impose same-sex marriage on that state over the summer (although it has not yet ruled).

Bill Frist, the Senate majority leader, gave the social Right a boost by coming out for a marriage amendment right after the Supreme Court’s ruling. But social conservatives spent the summer and early fall arguing with one another about what the amendment should try to do. The Alliance for Marriage, which has been leading the campaign for an amendment since the Vermont courts established civil unions, had proposed specific language — but the social conservatives could not agree on what the language meant. Marilyn Musgrave, a Republican congressman from Colorado who had agreed to sponsor the Alliance’s amendment, thought that it left civil unions alone. Two of the drafters of the amendment, Gerard Bradley of Notre Dame Law School and Robert George of Princeton University, thought to the contrary that it nullified some civil-union laws.

Some conservatives, especially those in Congress, were in the Musgrave camp: They thought that the amendment did not touch civil unions and were happy that it didn’t. (They thought either that states should make their own decisions about civil unions or that an amendment banning civil unions could not be enacted.) Other people agreed that the amendment left civil unions alone, but objected to that silence. They wanted an amendment that would ban gay marriage and civil unions. Bill Bennett, Rios, and the Family Research Council, among others, argued strongly that it would be pointless to fight for an amendment that allowed gay marriage in all but name. The amendment had to “protect an institution, not a word.”

So the objectors toyed with different wording. But they again ran into trouble. Everyone agreed that it did not make sense for a constitutional amendment to go into great detail about what benefits would and would not be available to gay couples. Another idea was to try to strengthen a 1996 law called the Defense of Marriage Act. That act defined marriage as heterosexual for purposes of federal law, and attempted to safeguard the ability of states to refuse to recognize other states’ same-sex marriages. Rep. John Hostettler, an Indiana Republican, wanted to pass a law to block federal courts from hearing challenges to the act.

There were problems with this approach, too. If the courts are prepared to impose gay marriage as soon as they can get away with it, as social conservatives worry, the Defense of Marriage Act will not stop such judicial activism. If, for example, Justice Kennedy and four colleagues decided that current marriage laws constituted unconstitutional discrimination (or an unconstitutional infringement on liberty), state laws would have to change even if the Defense of Marriage Act stayed on the books. If 50 state judiciaries imposed same-sex marriage, that would be the policy all over the country, and, again, it wouldn’t matter whether the Defense of Marriage Act was still theoretically in force.

As the debate over wording continued, the White House and Orrin Hatch, chairman of the Senate Judiciary Committee, were urging the amendment’s supporters to make it clear that they would not eliminate civil unions. In the four years since Vermont adopted civil unions under court order, support for them has become, in some respects, the moderate position (which is evidence of how badly the social Right has been losing). The social-conservative groups took to holding meetings without including anyone from Capitol Hill — not even Musgrave was allowed in, or social-Right stalwarts such as Rep. Joe Pitts of Pennsylvania. Conservative activists were pulling the amendment right while the Republican establishment was pulling it left. It looked as though the amendment would fall apart.

It fell to Chuck Colson, the leader of Prison Fellowship and perhaps the most unifying figure among social conservatives today, to find a solution. On October 15, he succeeded in getting more than 20 groups to come up with a common position. They agreed that the amendment would prohibit gay marriage. It would also prohibit the states and the federal government, including both the courts and the legislatures, from providing any benefits to people that were contingent on their being involved in a sexual relationship outside of marriage. The amendment would, however, allow state legislators to extend the particular privileges of marriage to gay couples — just not as gay couples. People not in gay relationships would also have to be eligible.

Say, for example, a state had made co-signing for loans a privilege of marriage. The state legislature could decide, under the amendment, to extend that privilege to any two people who share a home: a lesbian couple, or an unmarried heterosexual couple, or two sisters who share the rent, or whoever. The legislature could come up with a bundle of privileges formerly reserved to married couples — bereavement leave, hospital-visitation rights, the ability to make joint adoptions, and so on — and provide them more widely.

Whether the amendment agreed upon by the groups at Colson’s meeting would ban “civil unions,” then, is not a yes-no question. It would allow civil unions so long as eligibility for them is not based, even in part, on the fact, supposition, or presumption that the people involved are having sex. The amendment would thus make it theoretically possible for gay couples — and cohabiting straight couples — to have any of the benefits of marriage, except for governmental recognition of their relationships as equivalent to those of married people.

SENTENCE BY SENTENCE

That’s what Bradley and George thought the original text of the Alliance for Marriage’s proposed amendment did. It read: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” At Colson’s meeting, it was decided to add a third, clarifying sentence: “Neither the federal government nor any state shall predicate benefits, privileges, rights, or immunities on the existence, recognition, or presumption of sexual conduct or relationships.” The groups did not decide that this language had to stay in all its particulars, but all remain committed to the concept they think it embodies.

Roman Genn

There is still controversy about the meaning of the second sentence, the one about “legal incidents.” In this case, the controversy has been public and the arguments have come from the social Left rather than the social Right. Liberals and libertarians have complained that this sentence would radically restrict the powers of state legislatures. They envision a scenario in which, say, the Ohio legislature passed a law allowing joint tenants, rather than just married people, to co-sign loans. Courts would not be able to enforce that law, they argue, because they would have to “construe” the new law to confer “incidents of marriage” on unmarried people.

Bradley and George make a good case that this criticism is simply a misunderstanding. The “legal incidents” of marriage are whatever state laws say they are. If the legislature says that only married people can automatically co-sign loans for each other, co-signing loans is an incident of marriage. If the legislature passes a new law saying all joint tenants can co-sign loans, it’s not an incident of marriage anymore. What the second sentence says is that when a state legislature has reserved some benefit for married couples, the courts cannot force that benefit to be extended more broadly.

Let’s say that the amendment has passed and that the Virginia legislature has left co-signing loans as an incident of marriage. Further, let’s say a gay couple (or an unmarried heterosexual couple) go to court and say they have a right to co-sign each other’s loans. The Fourteenth Amendment requires states to treat people equally, they say, and that means the state has to grant them the benefit. Under the Federal Marriage Amendment, the court would have to send these plaintiffs home unsatisfied. The court would not be able to “construe” the Fourteenth Amendment to “require” that the state provide a benefit it has reserved to married couples — a “legal incident” of marriage — to the unmarried. If, on the other hand, the legislature had extended this privilege more widely, the court would have no trouble going along with that.

THE FEDERALIST HESITATION

Proponents of the amendment realize that they will have to address the argument that it violates federalist principles, a point that makes many conservatives who are sympathetic to it hesitate. The proponents have four responses. First, they say, marriage law is not exclusively a state concern. The federal government got rid of polygamy and forced states to allow interracial marriage. Second, some of the reasons federalism is valuable do not apply here — not, at least, if gay marriage is, in fact, a bad idea. Federalism is often defended because the states are “laboratories of democracy” and because different policies are appropriate for different states. Most social conservatives don’t think that we need state experimentation to find out whether gay marriage is a good idea or to prove that it may be a good idea for some places. Third, they note that almost all the state governments would have to approve the amendment for it to be enacted. The states would not, in practice, be trampled on. Fourth, they argue that the alternative to their amendment is not federalism, but a judicially imposed national regime of gay marriage.

If that’s true, then the amendment would provide states greater leeway than they would otherwise have. It would remain up to state legislatures to decide which benefits should be reserved for marriage, and which should be more widely available. The social-conservative supporters of the amendment stress that the amendment does not represent a grand compromise in which they give in on the question of benefits for gays. They figure they will fight over that issue state by state.

The social conservatives think that their amendment is politically viable. True, it would force a substantial modification of the few existing civil-union laws, and many of the existing domestic-partnership laws. People who believe that equality demands that the government recognize gay relationships as on a par with marriages will oppose the amendment. But proponents think that it would put Republicans in the position of supporting the traditional definition of marriage without necessarily denying any benefits to gays. “The outcome of this debate will depend on the extent to which conservatives are seen as pro-marriage rather than anti-gay,” says a senior Republican congressman. Some proponents of the amendment think they have found a useful line: The amendment isn’t against civil unions, they say, only against “discriminatory” civil unions that are for gays only (or gays and unmarried straight couples only).

It isn’t clear that the White House and most congressional Republicans will agree that the amendment is doable. Tom DeLay, the House majority leader, has sometimes said he is against amending the Constitution at all. The White House has been waiting for the Massachusetts court to act. It still has not, even though its decision was expected months ago. If the court brought full-fledged gay marriage to an American state for the first time, there might be a strong public reaction against it — and the president would have a clear reason to come out for an amendment to prevent gay marriage. But the court may decide to opt for civil unions, or some other dodge, in order to avoid a political reaction.

I’m skeptical of the amendment’s chances. The rules for democratically enacting constitutional amendments are such that amendments can be easily defeated. If one of the two major parties uniformly opposes an amendment, the amendment is dead. If a wing of a party opposes it and commands any significant support in the country, the amendment will probably go down. All of the Democratic presidential candidates have come out against the marriage amendment.

Many amendment supporters seem resigned to fighting a long, difficult battle for it over the course of several elections. “There is more passion than any issue I have experienced,” says Colson. “This is a very significant wedge issue in my opinion.”

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The Federal Marriage Amendment Is Hopeless (Weekly Standard, 031119)

But federal law can succeed in protecting marriage where a constitutional amendment is destined to fail.

THE MASSACHUSETTS SUPREME COURT has legalized same-sex marriage for the first time in this country. Most suspect the U.S. Supreme Court will throw a blanket of federal constitutional protection around this precedent.

Faced with the judicial deconstruction of marriage, angry conservative spokesmen and panicky lawmakers have rushed to embrace the Federal Marriage Amendment (FMA), a constitutional amendment to ban homosexual unions. These well-intentioned religious and pro-family leaders believe the high court will strike down anything less imposing. But trying to change the Constitution to resolve a fundamental social conflict is a deeply mistaken strategy. Not only will it almost certainly fail to be ratified; it will end up enshrining these “marriages.”

There must be a more deliberate response. For three years President Bush has been saying that he believes in traditional marriage between a man and a woman. At his press conference following the Lawrence v. Texas anti-sodomy decision, he suggested that the administration is considering alternatives to a constitutional amendment. With firm leadership, the Republican majority in Congress could enact legislation right now to close the door on unisex marriages before the Supreme Court rules.

THE SLIM POPULAR MAJORITY now in opposition to “gay marriage” is not nearly sufficient to ratify a constitutional amendment. The Framers designed the constitutional amendment route to be difficult. Two-thirds of each house of Congress must first approve the amendment language, which then must be ratified by legislatures in at least 38 states--usually within seven years. (The alternative procedure, a constitutional convention, has never been tried.)

every Republican senator voted for the FMA, 16 Democrats would have to be found to support it. In the House some 60 Democratic votes would be needed in addition to a unanimous Republican vote.

If some political miracle allowed the FMA to pass Congress and escape to the states, a higher series of hurdles awaits. Any 13 state legislatures can defeat it by either taking no vote or rejecting it. It is theoretically possible for two percent of the American people, strategically distributed in 13 small states, to kill an amendment favored by the other 98 percent. A small, energized minority would have little trouble doing so.

BUT LOGISTICAL CHALLENGES ASIDE, proponents of a marriage amendment seriously misunderstand the Framers’ intention concerning constitutional changes. The founding generation vigorously debated these procedures (e.g., Federalist Papers 43 and 85, and the anti-Federalist Old Whig Essay I). The same Framers who democratized national elections and legislative enactments designed the amendment process to be partly national and partly federal--requiring a consensus of states, not merely majoritarian/democratic. And they set it up to take a long time so that deliberation, not anger or passion, would control the outcome.

The history of using constitutional amendments to resolve basic social problems is daunting. Like opposition to homosexual unions, the movements to abolish slavery, alcoholic consumption, and polygamy were centered in Christian churches. The anti-slavery struggle took over 60 years to ratify the Thirteenth Amendment, and only after civil war forged a consensus of sorts. During those decades many federal laws were enacted to limit the growth of slavery. The temperance movement began in the 1820s but the first prohibition amendment was not introduced until 1876, after which they were proposed almost every year. An amendment was ratified in 1919 after 90 years of work, only to be repealed in 1933.

The social conflict most like gay marriage involved the Mormon practice of polygamy in the western territories. Americans overwhelmingly opposed plural marriage. The first Republican party platform in 1856 denounced polygamy and slavery as “twin relics of barbarism.” President Grant proposed an anti-polygamy amendment in his 1875 State of the Union message, and for decades thereafter, amendments were introduced. Before World War I, 26 states had petitioned for a constitutional convention. Yet legal recognition of polygamy was crushed not by amendment but by a series of limited executive actions and federal laws that were sustained by the Supreme Court.

SOME CONSERVATIVES RESIST federal legislation on gay marriage because, they contend, family regulation belongs to the states, not the federal government. (Of course if these conservatives support FMA, they don’t really object to the shift.) In fact the horse has been stolen from the barn. Lawrence v. Texas dragged same-sex marriage into the federal arena. If the Supreme Court blesses the Massachusetts decision, gay marriage will be nationalized to stay.

For example, instead of directly forbidding same-sex partners to marry, a federal marriage privilege protection measure would make it a criminal offense for state or local officials acting “under color of law” to issue a marriage license to persons of the same sex. Constitutional authority to pass this measure comes from the Fourteenth Amendment, buttressed by the Republican Guarantee clause (S. 4 of Art. IV) and the Necessary and Proper clause (par. 18, S. 8 of Art. I).

To appreciate this, consider the nature of the marriage relationship as understood from antiquity through centuries of thought and experience that shaped its meaning in American legal practice: The marriage union is a relationship characterized by privilege. Each spouse is recognized to have a privilege “to have and to hold” the person of the other. The privilege is exclusive: No one else may claim a right to join that union.

The marriage privilege is prior to government in the sense the Declaration of Independence speaks of regarding inalienable rights: “among these [implying there are others] are life, liberty, and the pursuit of happiness.” Families exist by nature to perpetuate the species, or natural rights themselves would disappear. Government’s purpose is not to dispense rights but to “secure” rights created by “Nature and Nature’s God.” To do this, governments enforce laws placing limits on how people exercise their natural rights and privileges. For instance, the rights to liberty and life can be constrained by jailing or executing criminals. The marriage privilege also must be regulated because the family is central to the well-being of society. No nation has ever claimed that a person should be permitted to marry anyone he or she chooses. The legal requirement of a marriage license grants a social privilege par excellence, a relationship to be enjoyed only by specific persons permitted and protected by law.

So deeply embedded in our society is this privilege that a thick network of legal rights and duties has been woven to reinforce it--over a thousand federal and 400 state laws by a rough count from the General Accounting Office. They comprehend everything from parents’ duties to their children, adoption, estates and inheritances, survivor benefits, immigration rights, domestic violence protections, and divorce settlements, to customs claims, lease renewals, tax laws, judicial evidentiary immunity, and many other areas. No other privileged relationship has been so marked out by legal benefits and obligations to prove its centrality for free society.

As Stanley Kurtz demonstrated in Beyond Gay Marriage, the movement to redefine marriage to include homosexual unions brings in its wake demands to legalize polygamy, polyamory (group marriages), triple parenting, incestuous partnerships, and worse. Expanding marriage to include same-sex partnerships implies the abolition of the marriage privilege, as proponents of these various arrangements clearly understand. Andrew Sullivan and other gay activists are angered by what they say is the equation of gay marriage with other unnatural unions, but no one has claimed these differing sexual arrangement are the same. The real issue in common among these relationships is the principle that is supposed to legitimize gay marriage: personal affectional preference. But marriage is not capable of being radically redefined. Reason itself, fixed in the nature of the relationship, imposes limits. Transcend the limits, and, as Kurtz shows, the marriage union dissolves as a social and legal institution.

For most of its history, the Supreme Court held that traditional marriage forms a family unit which is the fundamental building block of free society. The forms of self-government could not survive without it, so any weakening of the marriage privilege undermines free government. To preserve republicanism, the federal government is obligated (Art. IV, S. 4) to strengthen its basis in the marriage union.

The states’ power to enact marriage laws presupposes the purpose of securing the marriage privilege, not weakening it. By the terms of the Fourteenth Amendment, the states may not do so. Here is why.

MOST OF US KNOW the Fourteenth Amendment’s Due Process and Equal Protection provisions. Constitutional jurisprudence is filled with cases involving state actions denying one or the other. In a landmark 1873 opinion known as Slaughter-House Cases, however, the Supreme Court refused to recognize the butchers’ business in Louisiana as a federally protected “privilege” under the Amendment’s Privileges or Immunities Clause. The Amendment had been ratified after the Civil War to allow the federal government to protect the civil rights of ex-slaves. The case had nothing to do with marriage as a “privilege.” The consequence of Slaughter-House was to turn to the other great provisions to enforce civil rights and liberties.

Although the Court abandoned the Privileges or Immunities Clause after 1873, we are not without guidance as to what might be included. In a circuit court opinion in 1823, Supreme Court Justice Washington said that the privileges and immunities of state citizens “are, in their nature, fundamental; [they] have, at all times, been enjoyed by the citizens of the several states which compose this union, from the time of their becoming free, independent, and sovereign,” adding that “it would perhaps be more tedious than difficult to enumerate” what they are. The privilege of marriage precisely fits this description, especially since it was always thought to be basic to society’s well-being.

In a 1923 case called Meyers v. Nebraska, which struck down state laws forbidding foreign language courses in primary schools, the Supreme Court, referring to the Fourteenth Amendment, said: “the right of the individual . . . to marry . . . and generally to enjoy those privileges long recognized at common law [is] essential to the orderly pursuit of happiness by free men.” Not only did the Meyers opinion infer that marriage is a protected “privilege,” it cited Slaughter-House to support the inference.

Same-sex marriage proponents admit the traditional understanding of marriage as monogamous and heterosexual, which is why they call for it to be redefined. Of course, to stretch the limits of the marriage union beyond a man and a woman is by definition, a change in its nature. Those who assert that redefining marriage would be a good thing cannot also claim that redefinition would not change marriage as we have understood it: changing it is their whole purpose. But any fundamental state-imposed change would “abridge”--weaken or limit--the marriage privilege within the meaning of the Fourteenth Amendment. A new constitutional amendment would be needed to allow the states to redefine or abolish marriage. Short of that, the Fourteenth Amendment imposes on Congress the duty to defend the privileges of American citizens against state actions to change their meaning.

ENACTING A MARRIAGE PRIVILEGE PROTECTION STATUTE in the current Congress would give Republicans a significant advantage in next year’s elections. Compared to the lengthy process of ratifying the FMA, they would have taken immediate action to protect traditional marriage. This would not stop gay marriage from being an issue in the election campaigns. Rather, it would bring the question to the forefront.

The long delay connected with getting an amendment through Congress would allow incumbents to obscure their position. Neither Republican nor Democratic lawmakers want to vote on divisive issues like gay marriage. Some in both parties would say they support traditional marriage, yet find a multitude of objections to the amendment: the idea of changing the Constitution, the need for more expert testimony, etc. Even now the amendment’s sponsors don’t agree with each other about the proposed text’s meaning and whether it should be changed. Opponents will have a field day with the “vague” language. If President Bush took a leadership role, the marriage privilege protection statute could be brought to a vote before November 2004. Every senator and representative would be on record, and the party division would not be buried in platform statements.

If Republicans, supporting traditional marriage, keep the White House and increase their legislative advantage, important judicial consequences would follow. The late constitutional scholar Alexander Bickel taught that constitutional interpretation is a kind of colloquy among the three branches. When the judiciary veers too far from the common sense of the Constitution, the other branches open a conversation with the judges.

We badly need a colloquy like this today. Historical precedents suggest the justices might not disregard a clear assertion of legislative will on such a basic issue. Neither a weak “sense of Congress” resolution nor a fanciful constitutional amendment that will be dead on arrival can do much to advance this conversation. Enforceable law is Congress’ authoritative means to voice its position. With an election mandate to protect the marriage privilege, Congress and the White House would give the high court incentives and an opportunity to rethink its agenda. Should the justices persist, the conflict will intensify, not go away. A constitutional crisis--much like the New Deal crisis--would be almost inevitable.

Those who favor a constitutional amendment to protect marriage object to ordinary legislation, claiming the Supreme Court will certainly strike down a federal statute. President Franklin Roosevelt gave this classic response to such arguments:

[There are] those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one. To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties. When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed. . . . Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is.

Changes in the Constitution never happen merely because voters are angry. The Framers designed the process to insure that momentary passions don’t damage a Constitution that must endure for centuries. Amendments are possible when the political conflict is over and a consensus is established. Losing a fight over the FMA, which is virtually certain, will only give ammunition to those who would claim popular support for same-sex marriage. Enacting a marriage privilege protection law can advance the effort to forge a consensus that will preserve marriage and constitutional republicanism.

Dennis Teti is a writer who lives in Hyattsville, Maryland, who has taught political philosophy and constitutional law.

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Marriage Defeatists: Federalism is a poor excuse for abandoning a core social institution (Weekly Standard, 031215)

IS MARRIAGE WORTH a constitutional amendment? A fair number of conservatives think not. “Leave it up to the states!” urges John McLaughlin. George Will, with customary eloquence, calls “constitutionalizing social policy” both a “misuse of fundamental law” and “imprudent . . . at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy.” William Safire sees civil union as one of the “basic rights” that should be recognized in every state, “popular statutes to the contrary notwithstanding,” though he cannot quite come to grips with what to do about same-sex marriage except to say that activist judges should probably leave the issue alone.

But activist judges won’t leave it alone. With the recent Goodridge decision in Massachusetts, they are already opening the door to gay marriage. Why, then, do so many conservative voices reject the only possible effective political response?

One reason may be that many on the right view marriage as fundamentally a “values” issue. Marriage gets classified as “culture,” which means private, not public; at best as “social policy,” in George Will’s term. If marriage is conceptualized in this way, many conservative intellectuals are led by their commitment to federalism to reject the idea of defining marriage in the U.S. Constitution. Let states experiment with different social policies and find out what works best. This view of marriage as a values question is shared by many on the left. And it seems to be the view of the Goodridge court, which pays tribute to marriage as a social institution with this rather limited list of reasons why marriage matters to anyone beyond the individuals it joins:

Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private, rather than public funds, and tracks important epidemiological and demographic data.

By contrast, when the court touches on the individuals’ interest in marriage, it waxes positively poetic: Marriage “fulfills yearnings for security, safe haven and connection that express our common humanity” and is “among life’s momentous acts of self-definition.”

So from right to left, many express disapproval of changing our sacred Constitution on behalf of marriage. They’re happy to concede that economic matters belong in the Constitution. The right to bear arms? Sacred (at least on the right). Excise taxes and the inviolability of contract? Naturally. Yet many seem to believe that a Constitution filled with such things will be somehow tainted by the mention of a girlish issue like making sure that “marriage in the United States shall consist of the union of a man and a woman.”

Until quite recently, most educated Americans had a different view. When the United States refused to admit Utah to the Union unless it rejected polygamy in the late 19th century, lawmakers and judges agreed: Marriage was not just a private taste or a values issue or even a religious issue, it was one of the handful of core social institutions that make limited government, and a constitutional republic, possible. Shared family norms enshrined in law were at least as vital to the republic as norms about property rights and democratic government.

This raises two questions: First, why did so many educated Americans believe this about marriage until quite recently? Second, why do so few public intellectuals now conceive of marriage in this fashion? Why was the core importance of a common understanding of marriage once obvious, and when and how did it cease to be so?

The cause of the marriage crisis we now face is not merely a shift of values. Nor is it simply the work of ‘60s radicals. It is a broad, structural crisis visibly affecting every single developed nation in the world. As Allan Carlson has pointed out, the key to understanding this crisis is to recognize how many of the critical social functions marriage once performed have been taken over by government and the market.

For most of human history, the kin group was the primary unit of government, the locus of production and exchange, of care for the sick, the old, and the young. Marriage, as the key to kin-making, occupied a place of dominant importance. The family was for most people the primary work group, with husband, wife, and kids making much of what they needed on small farms. Disrupting a marriage meant endangering the livelihood of the entire family. To abandon the family was not only despicable, it was suicidal. If family bonds did not hold, who would care for you when you were sick, old, or otherwise unemployable?

In America and other developed countries, government now provides social insurance for the unemployed, the destitute, the elderly, the sick. Meanwhile each of us depends far more on the market than on family members to provide what we need in material terms, not only the goods we consume, but also the workers we need to produce goods.

These changes are broad, deep, and permanent. We have no desire to abandon the miracles of market capitalism to go back to churning butter and weaving cloth on our family farms, even if it were economically possible. The local WalMart will do just fine, thank you. As for government--Social Security, Medicare, Medicaid, unemployment insurance, child care subsidies, public education, and some form of welfare for poor kids (and their single moms) all are here to stay.

THESE ECONOMIC and political changes did not necessarily make sexual revolution a good idea, but, along with contraception and abortion, they made it possible. Before all these changes, it was unthinkable for large numbers of ordinary people to imagine that what they did with their bodies was nobody’s business but their own.

Today, marriage retains significant economic and social-insurance value; it remains an important unit of production and provides much dependent care. (As singles age, for example, they are especially likely to end up in nursing homes.) But relative to other social institutions like government and the market, marriage has played a diminishing role in recent generations, to the point where many Americans can no longer see the functions it performs. Educated Americans do not immediately grasp how they and the country at large depend on marriage. So many feel nothing essential is lost if we move, state by state, to a multiplicity of definitions of marriage--whereas “contract,” say, or “private property” or “corporation” they can see must mean by and large the same thing in every state for the economy to function.

Marriage increasingly is not a public norm, but an optional lifestyle and a mostly emotional good. Reducing marriage to an emotional good fuels a divorce culture, since marriages that cease to fulfill “yearnings for security, safe haven and connection,” in the words of Goodridge, are easily abandoned. And when millions of young women view marriage as having lots to do with their own yearnings and nothing in particular to do with making babies, unmarried childbearing abounds.

So why not just go with the flow? Give in and give up on the idea that marriage is a social institution and accept the economic and social changes that have reduced it to a mere symbol, a form of expressive conduct? Why not gay marriage? Why not polygamy, for that matter, if it makes three people, or four people, or a majority of a state’s supreme court judges happy? What right has the government to interfere in romance? What possible rational reason is there to oppose the longing of people to express their love in legal commitments?

Here are two: First, for every American who cares about the future of American civilization, marriage continues to have a vital function that no other institution is capable of fulfilling: creating the next generation and giving children the mothers and fathers they need.

Second, for proponents of limited government--which is in turn what makes freedom possible--marriage is the only alternative to a vast, continued expansion of the welfare state, where the people themselves shall be shaped by government (through the courts) and socialized by elites in a new set of values. When mothers and fathers don’t marry and stay married, the demand for government protection and services inevitably increases. Women alone raising children need help. If marriage is not the normal, usual, and generally reliable way of raising children, mothers (and their friends and relatives) will demand an expansion of government services to help them cope.

The practical result of the retreat from marriage as a social norm has been a vast expansion of the welfare state. What conservatives call welfare is only a drop in the bucket: High rates of divorce and unmarried childbearing are a driving force behind virtually every category of social spending. As more than 100 scholars and civic reformers noted in their 2000 Marriage Movement Statement:

Divorce and unwed childbearing create substantial public costs, paid by taxpayers. Higher rates of crime, drug abuse, education failure, chronic illness, child abuse, domestic violence, and poverty among both adults and children bring with them higher taxpayer costs in diverse forms. . . . While no study has yet attempted precisely to measure these sweeping and diverse taxpayer costs stemming from the decline of marriage, current research suggests that these costs are likely to be quite extensive.

High rates of divorce and unmarried childbearing reinforce each other, connected as they are by the cultural idea that marriage is expendable for children. If marriage is primarily about adult intimacy, safe haven, and connection, then there is no good reason to get married when you want to have a child, or find you have unexpectedly conceived one. If marriage is mainly about adult yearnings, there is no good reason to work at a struggling marriage when it ceases to be satisfying or particularly intimate. Trade in your spouse as many times as you need to, if satisfaction with your spouse is the purpose of marriage.

THE SOCIAL NORM that needs reinforcing, in the law and in the culture, is not: Soul mates should marry. It is: Children need fathers and mothers. This norm alone can sustain marriage as the primary source of support for mothers and their children, in lieu of government. Court-imposed gay marriage is not an expansion of individual liberty, but part of a highly successful strategy of certain elites to use the law to impose their values on the American people, reshaping social norms and institutions in the process.

What we see emerging is a new sort of society where educated elites use the soft power of the state to reengineer people’s values as they will. The ordinary limits of governmental power cannot stop them, since the new values will be defined as “basic rights”--in whose name even libertarians will support a vast new intrusion of government into the lives of individuals. After redefining marriage, the next act is to redefine parenthood to accommodate two-mother families, two-father families, and whatever else people’s yearnings for connection may produce. Perhaps libertarians will hail all this as an advance. When the new day dawns, courts--once bound by the idea that motherhood and fatherhood sprang from nature--will be free to define family relationships and distribute parental powers as they see fit.

Because marriage is a public, not a private, act, everyone will be forced to acknowledge the new social values. Public authorities will have to accord equal respect to whatever family forms adults choose, as they exercise their new basic right. Schools will become messengers of the new values; with time, radio stations may discover that they have failed to promote the “public good” if they object too strenuously to the new morality. This will all be done in the name of individual liberty, but the new liberty will consist of government’s punitively reshaping social institutions to make them purveyors of the moral values of narrow elites. Federalism--whose whole purpose is the dispersal of power--will have been exploited to give power to those who wish to revamp social norms. Limited government is exactly what is under sustained attack.

Meanwhile, if same-sex marriage proceeds apace, all the promising recent improvements in the culture of marriage will be halted in their tracks. Marriage will no longer be about producing and protecting the next generation, or about getting mothers and fathers for children. In the new regime, marriage will be about legally affirming the sexual and emotional lifestyles of adults in the governing class. What are the likely consequences for marriage?

If family systems are to function in a highly mobile society, there must be core values that are public and shared. This common definition is what allows families, churches, and communities to sustain a marriage culture, within which children--who will someday go out and marry biological strangers, from different families, churches, and communities--are reared to be good husbands and wives. One of the insights gleaned from experiments with capitalism in post-Communist Russia is the importance of cultural values in making economic freedom work. Could the economy function if each state had a fundamentally different notion of property? Can marriage survive as an institution in a society where it means one thing in Massachusetts and something radically different in South Carolina? Or where Massachusetts marriages are not recognized in other states?

Large, complex societies can easily forget that they need to reproduce if they are going to survive. European countries are in a population decline so severe that in a hundred years or so, some of them appear poised to become majority Islamic societies. The Japanese health minister recently issued a warning that, if childbearing rates don’t increase, the Japanese people are going to become extinct.

Getting men and women to channel erotic energy into the narrow but immensely fruitful union we call marriage is not easy. The things adults have to do consistently in order to give their children a stable, married mother-father home are hard. The public celebration and legal validation of marriage are intended to help define the importance of this task. That is the only real justification government has for interfering in peoples’ personal lives.

If marriage is only about intimacy, connection, and safe haven, as the Goodridge majority maintains, then government has no business in it. Maybe the advocates of family diversity are right: Maybe the idea that children need mothers and fathers, and that society needs babies, are outdated, dispensable notions. If you believe that, then permitting social experimentation across the states may be just the way to go.

But if you believe that marriage is one of a small number of social institutions (like democracy and property) that make limited government possible, then there is nothing at all anomalous about defining it in the Constitution. To so protect it amounts to saying again, as our forefathers said to Utah polygamists in the 19th century: The social system of our country, to which all our states subscribe, entails a shared respect for the republican form of government, for property rights, for free expression--and for marriage.

Maggie Gallagher is the president of the Institute for Marriage and Public Policy in Washington, D.C.

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Pillars Of A Constitutional Marriage Amendment (Free Congress Foundation, 031125)

I have done a host of media interviews over this past week on the ruling by the Massachusetts Supreme Court on so called “gay marriage.” Every single reporter asked the same thing. Will gay marriage be an issue in the 2004 elections?

The answer is not a simple one. First, it depends on who the Democratic nominee is and what position he takes on the issue.

Secondly, it depends on the Bush Administration and what it is willing to say about the matter next year.

Thirdly, it depends on the Congress and what action might be forthcoming in the form of a Constitutional amendment.

Fourthly, it depends on the pro-family coalition and just how much effort it is willing to put into a national debate on the issue.

Most of the Democrats running, with the exception of the lowest tier candidates (Dennis Kucinich, Carol Mosely Braun and Al Sharpton) say while they support Vermont-style civil unions they oppose gay marriage. The test for some of them will be when they have to vote on a Constitutional amendment on that issue. If they vote “no” on a Constitutional amendment, it will be hard for them to credibly maintain that they are against gay marriage.

The Bush Administration is not terribly comfortable with the issue. The President is a genuine compassionate conservative and does not want to come across as overly harsh. The President needs to be reminded that it is possible to hate the sin and love the sinner. Practicing sodomy is still a sin, the U.S. Supreme Court notwithstanding. It is not necessary to stand in judgment of anyone by taking a strong stand that, as Governor Mitt Romney of Massachusetts has made clear, is in tune with thousands of years of recorded history.

It is not clear what Congress will do. Senators are considering language for a Constitutional amendment that would make it clear that civil unions are not marriage as well as insisting that true marriage is between one man and one woman. Senators are interested in the strongest language possible but have made it clear to the pro-family movement that they want to pass an amendment. They are not just involved with this issue for the purpose of a debate. Surprisingly, one Senator who really wants to move on an amendment is Gordon Smith of Oregon. It is interesting that Mormons on both coasts, elected in the most liberal states in the nation, are showing real leadership on the issue.

As to the pro-family movement, some are serious about passing an amendment. Others such as Bill Bennett, say we should have a national debate in lieu of Congressional action unless we can get Congress to outlaw civil unions and not just gay marriage.

My guess is that if Constitutional amendments begin to move in Congress, the pro-family movement will likely get behind them. The question is how much behind them? Some leaders say that their people won’t go all out unless the strongest possible language is being pushed. Others believe if their leadership blesses the Congressional action, their folks will go along.

The pro-family coalition, which includes such diverse groups as the Southern Baptists and the Knights of Columbus, has powerhouse potential. Rev. Don Wildmon, whose ministry includes the ownership and operation of a couple hundred radio stations, has said that when the pro-family movement is united, it is a force for good that can’t be outdone by even the very powerful homosexual lobby.

Right now, public opinion is rising against gay marriage. About 60% are saying they oppose it. Among those who attend church regularly, the number is upwards of 80%. Intensity most often determines the outcome in the political process. The homosexual lobby is intense on this issue. So is the pro-family community. This will be a test for the pro-family coalition. Do they believe in the family strong enough to go all out to defeat those forces determined to destroy the family as we know it?

“God is on our side”, one of the leaders of the movement intoned at a recent meeting. Taking a leaf from Ronald Reagan, I told her and the group, “Better we should worry that we’re on God’s side.” I believe in this instance we are, and if that is the case perhaps we will be able to enlist His power to help us along. It is going to take God’s strength and power for right to prevail.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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Married to the Solution: The greatest anti-child-poverty program predates America (NRO, 040116)

Centuries ago, mankind created the greatest anti-child-poverty program in all of recorded history. It was called marriage.

During the past three decades, the consensus behind this wondrously effective social program has collapsed. The result has harmed countless American children for whom there is no disaster quite like being born out of wedlock and growing up in a single-parent household.

Almost two-thirds of the nation’s poor children are in single-parent households. A child raised in a never-married household is roughly seven times more likely to be in poverty and five times more likely to be welfare-dependent. He is at greater risk to have emotional problems, fail academically, abuse drugs — and experience everything else you hope a child would be spared.

The United States doesn’t have a “welfare problem,” so much as a marriage problem. We spend $200 billion a year on various means-tested welfare programs. Seventy-five percent of it goes to single parents. The welfare system as we know it for children would hardly exist if it weren’t for widespread single parenthood.

The Bush administration has proposed programs to strengthen marriage as part of the reauthorization of the 1996 Welfare Reform Act, and President Bush might well highlight them in his State of the Union address. If so, the marriage debate in the United States could be usefully widened from whether judges should be allowed to create gay marriages to the broader question of how to strengthen marriage among heterosexuals.

Government has avoided promoting marriage because it feels too “judgmental,” and feminists have created a malodor around the institution (patriarchal, repressive, blah, blah, blah). “Over the last 20 years,” says Bush-administration marriage guru Wade Horn, “there has only been one service that we have not been offering — marriage education — because we’re afraid of saying the word ‘marriage.’”

But without a renaissance in marriage there will be no true welfare reform. “The point of welfare reform was never to have lots and lots of hardworking single mothers,” says the Heritage Foundation’s Robert Rector, who was a prime architect of the 1996 welfare bill. He hoped it would promote marriages that would fundamentally improve the lives of women and children in a way government benefits, or even a job, can’t.

Those excusing the single-motherhood status quo say that there are just no men for low-income mothers to marry. According to a Princeton University survey, however, roughly half of mothers of out-of-wedlock kids are cohabiting with the father at birth. The relationships are there; they just don’t last. Another excuse is that the men involved don’t make enough money to support the mothers. But fathers of children born out of wedlock make, on average, $17,000 a year. According to Rector, if they were to marry the mothers of their children, 75 percent of the mothers would be lifted out of poverty. In roughly two-thirds of the cases, the mothers would be lifted out of poverty without even having to work themselves.

Nor is the problem that marriage is held in low esteem. “Marriage is already sold; we don’t need to sell it,” says Horn. Rector reports that single mothers value marriage. It’s just that they consider it a near-utopian state to be achieved in some far-off future when they have made it into the middle class. What they don’t realize is that marriage is their ticket into the middle class.

Why not help those young couples — on a voluntary basis, of course — interested in getting this ticket? Private-sector programs that teach couples better relationship skills have repeatedly been shown to encourage healthy, sustained marriages. Most of these programs have been tried with middle-class couples, but they would almost certainly work with low-income couples — the target of the Bush proposal — as well.

“What is astounding to me,” says Horn, “is that this isn’t already being done, because it’s so logical.” Unfortunately, logic hasn’t been the guide to American social policy since the 1960s. Or the most effective anti-child poverty program ever would never have been abandoned.

— Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.

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For the Marriage Amendment (Weekly Standard, 040223)

The case for a federal marriage amendment.

IN AN ACT OF ASTONISHING SELF-RIGHTEOUSNESS and self-congratulation, the Massachusetts Supreme Judicial Court has forced the question of marriage upon the entire United States.

A dozen legal battles stand between the Massachusetts court’s dictate for one state and the legal redefinition of marriage in the rest of the nation. Each of these battles is important, and each must be fought. But they are, to a large degree, merely holding actions and last-ditch attempts to use some courts to limit other courts. Short of an all-out balance-of-powers fight between the branches of the Massachusetts state government, there will be legal same-sex marriages in the United States in three months--and directly afterward, we will have court cases in every other state demanding recognition of Massachusetts’s licenses. Judicially ordered homosexual marriage has arrived for the entire nation, however much Americans might have hoped to avoid the question, and immediate intervention at the highest level of national law is necessary if we want to stop it.

“If judges insist on forcing their arbitrary will upon the people,” President Bush declared in his State of the Union address, “the only alternative left to the people would be the constitutional process.” Judges in Massachusetts have now insisted, and the only serious alternative is an amendment to the United States Constitution defining marriage as the legally recognized relation of a man and a woman and withdrawing from courts the power to expand that definition to other human relations. The Federal Marriage Amendment currently before Congress accomplishes both these tasks. Strong presidential and legislative leadership will be required to see it passed and sent to the states for approval. The time for that leadership is now.

In its entirety, the amendment reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

Some opponents of homosexual marriage have objected that the amendment is too weak and the first sentence purely verbal, doing nothing to preserve the actual institution of marriage. But when the assault on marriage is definitional in its essence--when courts are forcing legal recognition of homosexual unions by redefining the word “marriage,” as though by calling a cat a bird they could make it fly--the correct response is, in fact, a definition. The framers of the Constitution did not envision that the nation’s judges would need instruction in the meaning of the word “marriage,” but since they do, an amendment is necessary to give it to them.

Meanwhile, some supporters of homosexual marriage have argued that the amendment’s second sentence bans civil unions and prohibits state legislatures from granting privileges to any human relation other than marriage. This is manifestly wrong: Every sponsor of the bill is on record as denying it--and conservative critics are vociferating against the amendment precisely because it doesn’t outlaw civil unions. The second sentence is directed at courts, stripping from them the power to compel homosexual marriage by appeal to other constitutional provisions. Insofar as the amendment affects legislatures, it merely requires them to specify the benefits they wish to give to relationships outside marriage--which is what civil-union legislation ought to do in the first place.

Homosexual marriage is not a “wedge issue” being pushed for electoral purposes by Republicans. Indeed, the political advantage is not entirely clear. If activists convince the media to paint the Federal Marriage Amendment as prejudice against homosexuals, and if Democratic candidates are allowed to dodge the issue, Republicans could find themselves injured by the fight during the fall election.

But what choice is there? We have a national issue now, forced upon us by the judicial will of the Massachusetts high court. In the absence of a national reply, the activists will simply keep pushing--as proved by San Francisco’s illegal granting of marriage licenses to homosexuals last week, solely to create cases to take to court. This issue must come before the people themselves, and when courts cast their political preferences as constitutional law, only a constitutional amendment can answer them.

--William Kristol and Joseph Bottum

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Incidents and Accidents (National Review Online, 040223)

Ramesh Ponnuru

Hints and allegations about the Federal Marriage Amendment.

Let’s, as the president would say, review the bidding on this. I favor a constitutional amendment that would block both the federal and the state courts from instituting same-sex marriage, civil unions, or from leaving marriage eligibility alone but extending some of its benefits to the unmarried. Such an amendment, I believe, would deserve the support not only of opponents of same-sex marriage but even of some supporters of it: supporters who believe that same-sex marriage would have greater acceptance in the long run if it were achieved legislatively rather than judicially, or who believe that it is wrong in principle for the courts to impose same-sex marriage however good an idea it might be, or who believe both things.

The great defect of this amendment is that, as far as I know, nobody but me has proposed it. What has been proposed is a constitutional amendment reading as follows: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” NR has editorialized in favor of this amendment (while endorsing my proposed amendment as a kind of fallback or compromise). I myself have not endorsed it, preferring to critique what I regard as bad arguments for it or, more often, against it.

But most recently, what I’ve been debating is what the amendment means — and, even more narrowly, what the second sentence of it means. This is not to say that there is no controversy about the meaning of the first sentence. Most supporters of the amendment believe that the first sentence reserves the word “marriage” for opposite-sex couples. A few supporters, however, believe that this sentence would also block certain kinds of civil-union laws. Professors Robert P. George of Princeton University and Gerard Bradley of Notre Dame Law School fall into this camp. In their view, the only way to rule out the interpretation that prohibits some forms of civil union would be to recast the first sentence as follows: “In the laws of the United States and the states, the word ‘marriage’ shall refer to the union of a man and a woman.”

But Bradley and George agree with every other supporter of the amendment I know in thinking that the second sentence of the amendment, taken by itself, allows legislatures to create civil unions and other benefits packages for same-sex couples. It blocks only the judicial creation of these civil unions and benefits. So, to sum up what we’ve got so far: Almost all supporters of the amendment believe it allows the legislative creation of civil unions; all supporters believe that the second sentence of the amendment does (or would if the first sentence were rewritten).

This is precisely the assertion that opponents of the amendment have chosen to contest. In recent weeks, bloggers Andrew Sullivan, Eugene Volokh, and Jacob Levy have all argued, against me, that the “legal incidents” sentence blocks even legislatures from creating civil unions. Evan Wolfson, a leading activist for same-sex marriage, has adopted this argument. So has law professor Andrew Koppelman.

There are some differences among the arguments the bloggers make. Volokh merely argues that my interpretation of the second sentence is wrong: As written, it blocks legislated civil unions. Levy argues that the precise wording does not matter: It is impossible in principle to devise language for a constitutional amendment that would allow legislative, but not judicial, creation of civil unions. Sullivan buys both men’s arguments, saying the former has “demolished” my own and the latter’s are “devastating.” He adds that social conservatives generally know that Volokh’s interpretation is true and are lying about the amendment’s meaning.

SULLIVAN’S THEORY

Sullivan generously exempts me from the charge of deliberate deception. But he does not provide much by way of evidence for its accuracy with regard to others. As near as I can tell, his main argument for the theory is that there would be no reason for social conservatives to want an amendment that allowed legislatures to create civil unions. If they really thought it meant what they say it means, in other words, they wouldn’t be interested. I’m afraid I don’t follow this at all. Most social conservatives, especially the activists, are much more alarmed at the threat of judicially imposed civil unions than that of legislatively enacted ones. They figure they can win fights in the legislatures more easily than the courts, and plenty of them will take an amendment that blocks the judicial threat even if it does not also restrict legislatures. (Some of them, on the other hand, refuse to support the amendment because it gives legislatures too much latitude.)

Unlike Sullivan, I take the disagreement on the meaning of the second sentence to be in good faith. I assume, for example, that Sullivan, Volokh, and Levy are not simply adopting their interpretation in a duplicitous effort to make the amendment look extreme, and that if it were enacted in its present form they would continue to claim that it bars legislatively enacted civil unions. If the current language passes, no doubt they will, in the future, urge Wolfson to file legal briefs to that effect.

VOLOKH’S SCENARIOS

Here’s why Volokh thinks that the amendment’s legal-incidents language means no civil unions, period. He envisions a scenario in which a legislature provides same-sex couples with some benefit or set of benefits that used to be reserved for married couples. But the executive branch refuses to provide the benefit, because it cannot, under the amendment, provide a legal incident of marriage to unmarried couples. And the courts can’t help, either: They can’t “construe” any statute to confer an incident of marriage on an unmarried couple.

In response, I have argued that the “legal incidents of marriage” are, essentually, whatever state legislatures say they are. They are not some set of historical benefits and duties that have tended to come with marriage. If the Indiana legislature, today, does not treat a particular benefit as marital, that benefit is not an incident of marriage in Indiana. That is true even if most states have historically offered that benefit as a marital incident and even if books compiling typical incidents of marriage list it as one.

In my view, the Indiana legislature could take some benefit formerly tied to marriage — say, joint adoption rights — and provide it both to married couples and gay couples in civil unions. In that circumstance, the legislature would have simultaneously taken two conceptually distinct actions: abolishing an incident of marriage and extending a benefit.

Volokh inclines more toward the view that an incident of marriage is any benefit that is traditionally associated with marriage. He offers examples of judicial decisions that have spoken of marital “incidents” in that way. None of these decisions, however, seems to be a judicial attempt to figure out the meaning of a statutory reference to “the legal incidents of marriage” — still less a constitutional reference to them.

A reasonable court trying to interpret the marriage amendment would, in my view, pay attention to the word “require.” What is that doing in the amendment? The text could simply declare that no statute or constitutional provision shall be “construed to confer” a benefit to same-sex couples. What’s the point of saying that a law can’t be “construed to require” that a benefit be conferred? It might be thought to suggest that a benefit can be conferred on same-sex couples but does not have to be. It is an option; a legislative choice.

Volokh goes on to say that if my interpretation is correct, a court would be able to create civil unions anyway. It could simply abolish incidents of marriage and then extend them, just as I say legislatures could do under the amendment. I think Volokh is right about this, to a limited extent. If a court is determined to read the amendment in complete abstraction from its clear intent, then it can indeed work its will.

But that scenario at least has some plausibility. It seems highly unlikely that, once the marriage amendment passes, the federal courts will be straining to interpret it in the way most hostile to same-sex couples.

LEVY’S ARGUMENTS

Levy accepts Volokh’s points about the meaning of the amendment, but goes on to suggest that no possible amendment language could allow legislatures, but not courts, to create civil unions. He writes,

If you try to prevent the judiciary from deeming that something like the equal protection clause creates a civil union — which is what supporters of the FMA [Federal Marriage Amendment] hope to do — then you also prevent the judiciary from deeming that the “Civil Unions Act of 2004” creates a civil union. The more moderate proponents of the FMA suggest that they’re open to the latter but not the former. But there’s simply no way to allow a judge to find legal justification for civil unions in an act of the legislature while forbidding him to find legal justification for them in the text of the constitution. Doing so would mean prohibiting any judicial interpretation of the more sweeping constitutional clauses, like equal protection, which would be the height of the kind of judicial activism conservatives frequently complain about. The judicial authority to construe one source of law can’t be parceled off so neatly from the authority to construe others.

Try as I might, I can make no sense of this. You would not have to prohibit “any judicial interpretation” of the equal protection clause; you would be prohibiting an interpretation of it that produced civil unions. It might be a bad thing to pass an amendment that abolished judicial review altogether, but that’s not the same thing as saying it’s impossible. Passing such an amendment would not be judicial activism; nor would it be activism for a judge to abide by it.

Levy goes on to suggest that there is something particularly unsettling about the federal imposition of a rule of construction on state judiciaries. Again, I don’t see his point. It may be true that nowhere else in the Constitution are state courts told how to interpret state laws. But they are effectively prohibited from giving effect to state laws that allow, say, slavery. I don’t see what the force of the distinction is supposed to be.

Or let’s look at Bush v. Gore. There you had a Florida supreme court that had “interpreted” state election laws. The Supreme Court found, rightly, that the court had trespassed on a power (the establishment of procedures by which electors are chosen) that the Constitution reserves to state legislatures. The state court’s interpretation of state laws implicated the federal Constitution. That’s what would happen, in some cases, if the marriage amendment becomes part of the Constitution.

As for the suggestion that no possible language will work, let me offer a suggestion: Strike the words “state or” from the second sentence of the amendment. That is to say, make it possible for a state law to be construed to require the conferral of benefits on same-sex couples. But continue to block the construal of a state constitution that way. That deletion should make Volokh’s scenario go away. And amendment supporters would not be giving up very much. What they are most concerned about is the idea that a court will take one of the “majestic generalities” typically found in constitutions and give it a specific meaning they do not believe it can bear. Statutes, by their nature, are less susceptible to this kind of thing. And if a state court took interpretive liberties with a statute, it would be much easier for the state legislature to correct the problem — it would simply need to pass a new statute.

I end with a question for Volokh. Does he agree with Levy that it is impossible to devise amendment language that would block the federal and state courts from creating civil unions while allowing state legislatures to create them? Never mind whether he thinks that such an amendment is a good idea. Can he come up with language that, to his mind, effects the goals that most amendment supporters say they have for it and none of the ones they have disavowed? If the language can be improved, it could make for a more edifying debate.

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Heterosexual Divorce: A Homosexual Target (Free Congress Foundation, 040227)

The latest tactic by the homosexual rights lobby in their drive to promote so-called “gay marriage” surfaced in Indiana recently. Their idea is to call to account conservatives and Republicans in the state legislature with divorces.

As one homosexual rights leader put it: “We think it is fair to ask during this debate how many legislators who are demonizing gay marriage have actually committed the most grievous possible injury to the institution they claim to want to protect.”

Mark my words: voters will know that this is just a bunch of blarney being dished out in advance of St. Patrick’s Day.

Groups such as the Indiana Stonewall Democrats, the Indy Rainbow Chamber of Commerce, and whoever else is pressing this call have no real interest whatsoever in promoting traditional family values, including lower divorce rates. It’s just a scheme to advance their own radical agenda of forcing people and states to recognize homosexual couples as “married” when there is no real basis to do so either in the Bible (or any other significant religion) or in three centuries of law in our country.

You don’t need to have X-ray vision to see through this. Apparently, these groups have no concern with family values, but they certainly seem to have every interest in destroying an institution intrinsic to society in order for their behavior to be perceived as “normal”.

Show me a stable family in our country today and I will show you one that is more likely to be safe from teen pregnancy, children doing drugs, alcoholism, and all the other social ills. I certainly see them in my church and I bet you see the same thing.

If it were up to many social conservatives, including myself, the divorce laws would be toughened, particularly to prevent so-called “no fault divorce.” Clearly, divorce is not in the best interest of children in most cases, the notable exception being marriages in which physical or exceptional verbal abuse occurs.

This was indeed an important issue in the past. As recently as the 1950s, voters looked askance upon candidates who broke their marital contract. Admittedly, many voters liked Ike better on the issues, but Adlai Stevenson’s divorce certainly did not help his popularity as a presidential candidate.

The institution of marriage has suffered enough with the rise of divorce in recent decades. One of the reasons many couples live together first, often never marrying, is because they come from broken homes in the first place. Based on that, they are forever gun-shy of marriage, expecting disaster to appear in their own relationships. This is sadly a self-fulfilling prophecy and the sins of the parents really are visited upon the children.

Granted every relationship goes through a rough patch, maybe several, but those parents who stick together are setting a positive example for their children.

Give same-sex couples the “right” to marry and we can expect some severe consequences. For one, the concept of faithfulness to one’s spouse will be further undermined given that many so-called committed homosexual partners have a high rate of multiple sexual partners outside their relationship. Don’t expect a civil union or marriage certificate to change this.

Rising insurance rates for married heterosexual couples could easily be on the horizon as the negative health consequences of sexual promiscuity in the homosexual community add to the overall health insurance burden.

Permitting same-sex marriage will help lead to more homosexual adoptions which will almost certainly make children from fractured backgrounds even more confused in their interactions with society.

Frankly, if the Indiana homosexuals are so concerned about divorce, then they should look first at their own ranks. Who among them can be urged to renounce their current lifestyle and reconcile with the opposite-sex spouse they left behind? Let’s see if they have the guts and decency to stop their publicity stunt and do that.

Society has paid the price for decades of flimsy divorce laws. There is growing a growing school of thought among social scientists that the separation of young boys from their fathers may be adding to the rise of homosexuality in our country.

For these reasons we applaud President Bush’s announcement that he has come out in favor of a ban on gay marriage. The more that religious leaders and lay people learn about the issue, the more they are against gay “marriage”.

All it takes now to drive the stake through the heart of traditional marriage is to legalize homosexual unions. No one, including those homosexuals pointing fingers at heterosexual divorce rates, should believe the sincerity of their aims. In this case, the homosexuals who claim to defend marriage and the family are, in fact, its worst enemy and are hastening the demise of both.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

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Not a Social Contract: Marriage is more than affection and good times (National Review Online, 040520)

By Jennifer Roback Morse

On May 17, 2004, the state of Massachusetts began issuing marriage licenses to gay couples. The proponents of this redefinition of marriage believe it is a step toward complete state neutrality regarding marriage: neutrality among types of couples, as well as neutrality among religious and non-religious ideas about marriage.

But this is only a pretense of neutrality, and the legal definition of gay couples as married actually enshrines into law two presumptions about marriage. These first is that marriage is best understood as a contract between people who love each other; the second is that love is best understood as mutual affection. These are not neutral ideas; in fact, these presumptions aren’t even true.

These are precisely the concepts that have failed in such a spectacular fashion for straight people, and have collaborated to nearly destroy the deeper understanding of marriage as a lifelong mutual gift of self.

MARRIAGE IS NOT A CONTRACT

The idea that marriage is a contract has undermined more heterosexual marriages than anything, with the possible exception of adultery. The problem with sliding into the contractual view of marriage is that it shifts the focus from a generous sharing of the self to a narrow and stingy view of rights and obligations. A contract is a carefully orchestrated exchange of promises, spelling out specific duties for a specified length of time. The parties calculate in advance. They haggle over the terms of their cooperation to ensure that no one is cheated. When the purposes of the contract have been fulfilled, it ends.

By contrast, the sexual act involves the complete sharing of one’s body with another person. I entrust myself to my spouse. He entrusts himself to me. This is not a carefully orchestrated exchange of promises; this is an act of self-giving abandon.

Couples could never fully specify everything they do to make their marriages work. Viewing marriage as a contract shifts the orientation from pursuing the couple’s “common good” to pursuing the good of each individual. When a couple starts asking “What’s in it for me?” — instead of “How can I help?” — the marriage is in trouble. When an employer hears a worker say, “It’s not in my job description,” he realizes the worker is not really part of the team. When couples start behaving that way, they’re acting more like roommates than spouses.

The mistake here is to view every form of voluntary cooperation with mutual advantage as a contract or quasi-contract. American society should not institutionalize an error of this magnitude — common among economists — by claiming that any voluntary grouping of people can count themselves as married.

LOVE IS A DECISION

Viewing love as mutual affection has created the unrealistic expectation that we can judge the strength of our unions by our feelings. Many straight people hold this view. We stay married as long as we like the way we feel with the other person. But basing marriage upon mere feelings is a recipe for divorce — because feelings are fickle.

The alternative is to view love as a decision. To love is to will and to do the good of the other. This understanding of love sustains us, to the benefit of the whole family, children and parents alike.

I don’t feel very good when my husband confronts me with negative information about my behavior. But it is in my interest to hear what he has to say. He is giving me an opportunity for positive change. If I act on my feelings, I will run from him at exactly the moment when he is doing something of lasting value for me. I have to make a decision to love him enough to listen. He has to make a decision to love me enough to tell me the truth in a helpful way. It is love, not how we feel, that keeps us engaged with one another.

Similarly, when the good of our children is at stake, our feelings are simply not the most important consideration. It has been proven beyond any shadow of a doubt that the children of couples in “low-conflict” marriages do better if their parents remain married to each other. Many children don’t even notice that their parents are unhappy, or quarrelling privately. These kids are likely to be devastated by their parents’ divorce, which they see as an unexpected and unwelcome disruption of their lives. As parents, we make a decision to love, and to bear some discomfort for the good of our children.

Marriage requires a lifelong commitment, and cannot be easily set aside for light cause, as so many straight people have lately done. “But we love each other” doesn’t work as an argument for anyone to claim an entitlement to marriage, unless he understands that genuine love, especially married love, requires some sacrifice of feelings. Americans have no trouble accepting a sacrifice of our immediate pleasure in order to pursue a graduate degree, or to go to work in the morning. Likewise, we need to cultivate a shared understanding that our immediate feelings toward our spouses are not the ultimate factor in making marriage work.

Most gay activists do not share this view of marriage. This is not what they are arguing for, nor what they seem to want. Giving them what they ask for amounts to accepting false empirical claims, and entails a deep reordering of the fundamental meaning of marriage. This may be part of the causal mechanism behind the decline of marriage in Scandanavian countries, so ably documented by Stanley Kurtz.

And this is why homosexual marriage is just the icing on the cake. Making gay nuptials legal may itself be wrong, but institutionalizing a poisonous view of marriage for everyone — gay or straight — is where the most harm is wrought.

— Jennifer Roback Morse is the author of Love and Economics: Why the Laissez-Faire Family Doesn’t Work.

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Like It or Not...The marriage amendment is the democratic way (National Review Online, 040708)

By Senator Orrin G. Hatch

“I think it is inevitable now.” — Patricia Logue, LAMBDA Legal Defense Fund, on nationalizing same-sex marriage.

In 1996, Senator John Kerry was one of only 14 senators, all of them Democrats, to oppose passage of the Defense of Marriage Act (DOMA). The bill was unnecessary, he said, since “no State has adopted same-sex marriage.” Well, the future is now, and Sen. Kerry’s own state of Massachusetts is leading the way. Last November, in its Goodridge v. Dept. of Public Health decision, the Supreme Judicial Court of Massachusetts declared same-sex marriage to be the policy of the commonwealth. Today, same-sex-married couples live in 46 states and activists are implementing a well-funded, multifaceted, and highly coordinated legal assault on traditional marriage. The inescapable conclusion is that, absent an amendment to the U.S. Constitution, same-sex marriage is coming whether you like it or not.

Next week, the Senate will vote on a Federal Marriage Amendment. In a series of hearings in several different Senate committees, witness after witness confirmed what the American people already know. Traditional marriage is the single best arrangement for raising children and forming citizens. For that reason, government may certainly select this time-proven institution for special preference and protection and a high burden exists for those who would introduce radical and untested substitutes. And it should be the American people who make such choices, not judges imposing their own preferences without the people’s consent.

The Legal Road to Same-Sex Marriage

“[W]e need well chosen, carefully mounted cases.”

— Evan Wolfson, executive director, Freedom to Marry

When allowed to choose, legislatures protect marriage rather than dismantle it. Therefore, advocates of same-sex marriage resort to strategies involving the executive or judicial branches. In states such as California, Oregon, New York, and New Mexico, rogue local officials have simply defied their own state marriage laws and married thousands of same-sex couples. While saying that New York law does not allow same-marriages, state attorney general Eliot Spitzer has promised that he will nonetheless recognize same-sex marriages from other states.

But in most cases, advocates turn to the courts to impose their preferred policies on their fellow citizens, and their legal war against traditional marriage has at least five fronts. First, nearly a dozen states so far face state constitutional challenges to their traditional laws limiting marriage to a man and a woman. It doesn’t matter whether the people have expressed themselves directly or through their legislatures. In California, even though 60 percent of voters recently approved a statewide ballot initiative to maintain traditional marriage, the California supreme court is now considering the constitutionality of that democratic action. In Nebraska, the American Civil Liberties Union has challenged a duly passed state constitutional amendment that defines marriage as between a man and a woman.

Second, there will likely be a federal court challenge to state marriage laws, similar to the challenges that have eliminated state laws against certain sexual activity.

Third, a federal lawsuit in Florida is challenging DOMA’s traditional definition of marriage for purposes of federal benefits.

Fourth, same-sex couples from across America who obtained marriage licenses in places such as San Francisco and Massachusetts have gone home and will try to change their home-state’s policy by forcing it to recognize their union. They will cite the Constitution’s requirement that states give “full faith and credit” to other states’ judicial proceedings.

And fifth, look for lawsuits should states refuse to recognize these imported unions by citing their own opposition to same-sex marriage or DOMA’s protection against recognizing non-traditional unions from other states.

Most Americans probably assume they and their elected representatives can continue making policy decisions about marriage as they have in the past. After all, 40 states have recently taken some step to further protect marriage. Not surprisingly, the popular response to Goodridge and its aftermath resembles the decision itself: confused and conflicted. Americans clearly support traditional marriage, but do not readily see how a court decision in Massachusetts affects them in Nebraska, Arizona, or West Virginia. While the American people should be able to protect marriage through ordinary legislation, the multi-front legal assault is poised to strip away this right to self-government. The only solution left is to amend the United States Constitution.

The Supposedly Conservative Case Against an Amendment

This conclusion has been challenged by a few conservative-sounding arguments. Coming as they do primarily from legislators and other advocates who not only tolerate, but actually embrace, repeated judicial amendments to the Constitution, this sudden resistance to popular amendments must be taken with at least a grain of salt.

Some say that the Constitution, which has seen only 27 amendments in 217 years, should not be tinkered with. Patrick Guerriero of the Log Cabin Republicans insists that we should not “ignore the important business pending before the United States Senate in order to play politics with our nation’s founding document.” Apart from the fact that the Senate is indeed handling the other important business, this argument begs questions rather than answers them. Activist lawyers and judges have forced this issue onto the national agenda. It isn’t “playing politics” with the Constitution when an amendment has become the only available means of addressing this crisis.

Next, we hear from newly baptized federalists in the Democratic party. Senator Russ Feingold, for example, argues that “states should...be permitted to handle this issue as their citizens see fit...in accord with the founding principles of our nation.” While that is the way states addressed issues such as marriage policy in the past, the legal assault on marriage will deny this right to the states. And if the full-faith-and-credit strategy works, the Supreme Judicial Court of Massachusetts will ultimately have determined this issue for citizens of non-consenting states, hardly a move respectful of federalism. Democrats, who rarely meet an expansion of national power they don’t like, must know that by opposing a constitutional amendment to protect marriage, judges will continue imposing same-sex marriage over the will of the people.

Finally, the organized opponents of the Federal Marriage Amendment (FMA) contend that it is premature. After all, they say, the Defense of Marriage Act (DOMA), which protects states from having same-sex marriage imposed by the judges of other states, remains the law of the land. Senator Edward Kennedy, also of Massachusetts, claims that “no state will be bound by the rulings or laws on same-sex marriages in any other state.” Senator Kennedy is another who opposed DOMA but now claims it is sufficient. He and other advocates of same-sex marriage also argue, however, that the very precedents supposedly protecting states’ ability to set their own marriage policy should be struck down in the courts.

These arguments, and others likely invented in the future, are all designed to let the clock run out. By preventing any substantive protection for marriage, advocates of radical changes in family structure hope to buy time for the legal warriors to gain more ground. By that time, especially should the U.S. Supreme Court rule that same-sex marriage is the law of the land, these same advocates will switch gears and oppose an amendment because it would take away the “right” created by judicial fiat.

After Goodridge, which itself came on the heels of the U.S. Supreme Court declaring a constitutional right to individual sexual autonomy, the choice is no longer between amending the Constitution or leaving this issue to the states. The only choice is between popular resolution of the effort to protect traditional marriage or judicial resolution of this question in favor of same-sex marriage. In the face of this threat, it is flatly irresponsible for elected officials, sworn to uphold the Constitution, to sit idly by as courts corrupt our national charter and advance a social experiment explicitly rejected in state after state, and in every region of the country.

DOMA’s False Sense of Security

“DOMA does violence to the spirit and letter of the Constitution.” — Senator John Kerry

The Advocate,” September 3, 1996

“The Defense of Marriage Act is the law of the land today.”

— Senator John Kerry, February 26, 2004

The very people who said in 1996 that DOMA is unconstitutional tell us today that DOMA is good law, solid enough to protect marriage without amending the Constitution. While this legislative protection should be enough, recent court rulings and other developments have convinced most analysts — either grudgingly or enthusiastically — that the DOMA solution will not last.

States such as Louisiana, South Dakota, West Virginia, and Nebraska have all acted to protect traditional marriage, but each of those states now has same-sex resident couples who were married in another state. Will those marriages be recognized or dissolved? DOMA sought to provide the states with a blanket right to refuse recognition of same-sex unions. The Goodridge decision, however, exposes its potential deficiencies. First, a court could conclude that, even though the Constitution gives Congress a role, it may not go as far as it did in DOMA. When DOMA was passed, Harvard law professor Laurence Tribe expressed the “unequivocal” conclusion that “Congress possesses no power under any provision of the Constitution to legislate [as it does in DOMA] any such categorical exemption from the Full Faith and Credit Clause of Article IV.”

Second, without DOMA, states will have to justify their refusal to recognize same-sex marriages performed elsewhere. On this point, the deck is already stacked against them. In Lawrence v. Texas, the Supreme Court found that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” The more fundamental the choice or “right,” the more significant the government’s reason must be to limit it. Several years earlier, in Romer v. Evans, the justices had already concluded that denying absolute equality to homosexuals is merely “irrational animus” toward that group.

The Goodridge judges cited these precedents when they imposed same-sex marriage on the people of Massachusetts. With DOMA likely to be overturned, the Supreme Court will have no obstacles to imposing this policy experiment on the people of every state. If the American people are to exercise their right to choose on this matter, a constitutional amendment is absolutely necessary.

Maintaining the Peoples’ Constitution

“The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers.”

— Abraham Lincoln, March 4, 1861

To permit a handful of liberal judges to force this radical change on the entire nation is wholly inconsistent with the right of people to govern themselves. This debate over same-sex marriage is fundamentally a question of who decides important matters of public policy in a constitutional democracy. Judges who usurp the role of legislatures by imposing their preferred policies on the people dramatically undermine democracy’s vitality and legitimacy. I fear that we have lost sight of this fundamental principle.

As a senator, my oath of office requires me to defend the Constitution and the system of government it established. That oath means supporting the only solution to this crisis that threatens to undermine not only the vital institution of marriage, but the fundamentals of democracy as well. Protecting marriage requires amending the U.S. Constitution because we simply cannot wait for, or tolerate, further judicial corruption of both marriage and the Constitution. As our experiences with abortion, criminal rights, and religious liberty demonstrate, it is nearly impossible to correct Supreme Court decisions once made. “We the people” established the Constitution, but if we leave this issue to the courts, same-sex marriage will be here to stay whether we like it or not.

Our opponents’ objection that the Constitution has always been amended to extend rights tells only half the story. The Constitution’s amendments have generally served to extend the right of citizens to govern themselves, and to be able to make final decisions on issues such as marriage. The people in the states have already spoken on this issue, and the FMA will protect their fundamental right to democratic self-government — a right being eroded by an unaccountable judiciary.

For a simple and compelling reason, traditional marriage has been the norm in every political community for 5,000 years. Society has an interest in the future generations created by men and women. Decoupling procreation from marriage in order to make some people feel more accepted denies the very purpose of marriage itself. And such a radical transformation should not be imposed by judges upon people who would not choose it for themselves. Yet absent a constitutional amendment, that is precisely what we face.

— The Honorable Orrin G. Hatch is a Republican senator to the United States Senate from Utah. Senator Hatch is chairman of the Senate Judiciary Committee.

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Marriage Matters: Why? & FAQ (National Review Online, 040713)

I. Why Does Marriage Matter?

When their mothers and fathers don’t get and stay married, bad things happen to more kids more often: more poverty, welfare dependence, child abuse, sexual abuse, substance abuse, physical illness, infant mortality, accidental death, homicide, premature and promiscuous sexuality, early unwed pregnancy, suicide, juvenile delinquency, educational failure, conduct disorders and adult criminality. Children suffer and whole communities pay the cost in crime, social disorder and high taxes as government steps in to deal with the needs created when families fall apart. Family structure matters and the family form that does the best job for kids is the child’s own married mother and father.

Marriage is not created by government. It is older than the Constitution, older than America, older even than the church. It exists in every known human society and it always has something to do with bringing men and women together so that society has the next generation it needs and children have both mothers and fathers, as they need.

II. Top Five Reasons to Oppose Same-Sex Marriage:

1. Marriage is about affirming the ideal. And when it comes to children, science and common sense both say: Mothers and fathers both matter to children.

2. Same-Sex Marriage sends a terrible message to the next generation: alternative family forms are just as good as traditional families, children don’t need a mother and a father, and marriage is about adult desires for affirmation or benefits, not about the well-being of children.

3. It’s just wrong for the law to pretend that two men being intimate are the same as a husband and wife, especially when it comes to raising children.

4. Marriage belongs in the hands of the people. Four judges in Massachusetts have no business rewriting the moral rules our kids are going to live by.

5. Marriage isn’t a special interest, it’s a common good. Every American benefits from a healthy marriage culture. All Americans pay the price in increased taxes, social disorder, and human suffering when mothers and fathers fail to get and stay married.

III. Frequently Asked Questions

Don’t homosexual people need the benefits of marriage?

If medical proxies aren’t working, let’s fix that problem. If people need health care, let’s get them health care. Don’t rewrite marriage laws in order to satisfy a small fraction of adults who have personal needs and problems.

Are you saying gays can’t be good parents?

Two men might each be a good father, but neither can be a mom. Children are hungry for the love and attention of both their parents — their mom and their dad. Marriage is about giving children the ideal, and no same-sex couple can provide that.

Aren’t laws prohibiting same-sex marriage the same as laws prohibiting interracial marriage? Aren’t they discriminatory?

Anti-miscegenation laws were about keeping two races apart. Marriage is about bringing two sexes together. Having a parent of two different races is just not the same as being fatherless or motherless.

Why do you want to interfere with love?

Love is not an excuse for adults to do whatever they want and assume the kids will adjust. We need to get back to basics, including the idea that one major goal of marriage is to remind men and women that we have the obligation to do the best we can to give our children the protection of a married home in which they can know and love both their mother and their father.

What about older or infertile couples? If they can marry why not same-sex couples?

Every man and woman who marries is capable of giving any child they create (or adopt) a mother and a father. No same-sex couple can do this. It’s apples and oranges.

Why are you blaming gays and lesbians for the problems of heterosexuals?

Judges are the ones rewriting our marriage laws. People who really cared about marriage and the suffering of fatherless children would not rewrite our marriage law to say that kids don’t need fathers, and that alternative family forms are just as good as a husband and wife raising children together. That’s the message of same-sex marriage. It’s not kind or compassionate to children at all.

— Maggie Gallagher is president of the Institute for Marriage and Public Policy and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.

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Dutch Debate: Despite a challenge, the evidence stands: Marriage is in decline in the Netherlands (National Review Online, 040721)

Stanly Kurtz

There’s a new development in the story of Europe’s marriage meltdown. Recently, a group of five scholars in the Netherlands issued a letter addressed to “parliaments of the world debating the issue of same-sex marriage.” The Netherlands was the first country to adopt full-fledged same-sex marriage, and this letter is the first serious indication of Dutch concern about the consequences of that decision. So it’s worth quoting the letter at some length. After citing a raft of statistics documenting the decline of Dutch marriage, here is some of what these scholars had to say:

...there is as yet no definitive scientific evidence to suggest the long campaign for the legalization of same-sex marriage contributed to these harmful trends. However, there are good reasons to believe the decline in Dutch marriage may be connected to the successful public campaign for the opening of marriage to same-sex couples in the Netherlands. After all, supporters of same-sex marriage argued forcefully in favor of the (legal and social) separation of marriage from parenting. In parliament, advocates and opponents alike agreed that same-sex marriage would pave the way to greater acceptance of alternative forms of cohabitation.

In our judgment, it is difficult to imagine that a lengthy, highly visible, and ultimately successful campaign to persuade Dutch citizens that marriage is not connected to parenthood and that marriage and cohabitation are equally valid ‘lifestyle choices’ has not had serious social consequences....

There are undoubtedly other factors that have contributed to the decline of the institution of marriage in our country. Further scientific research is needed to establish the relative importance of all these factors. At the same time, we wish to note that enough evidence of marital decline already exists to raise serious concerns about the wisdom of the efforts to deconstruct marriage in its traditional form.

You can read an interview with two of the letter’s signers here, and a front-page news story about the letter in the Dutch paper, Reformatorisch Dagblad, here.

Undeniable Decline

During last week’s Federal Marriage Amendment debate, many senators referred to the Dutch scholars’ statement, and to marital decline in Scandinavia and the Netherlands. Of course, you probably haven’t heard about that, because, for the most part, the American press has refused to report the story.

Even so, gay-marriage advocates are worried. M. V. Lee Badgett, research director for the Institute for Gay and Lesbian Strategic Studies, has issued a new critique of my work on Scandinavia and the Netherlands. In “Unhealthy Half-Truths,” I refuted Badgett’s first attack. Now she’s back. Badgett’s critique of my work is long on statistical tricks and short on engagement with my actual argument.

The bottom line is the neither Badgett nor anyone else has been able to get around the fact that marriage in both Scandinavia and the Netherlands is in deep decline. In Scandinavia, that decline began before same-sex registered partnerships were established, but has continued apace ever since. In the Netherlands, marital decline accelerated dramatically, in tandem with the growing campaign for gay marriage.

The strategies for evading these hard truths don’t work. Gay-marriage advocates regularly cite steady or improving rates of marriage and divorce in Scandinavian countries to prove that all is well. I’ve shown repeatedly that these numbers are misleading. Scandinavian marriage numbers are inflated by remarriages among the large number of divorced, for example. Scandinavian divorce numbers omit legally unrecorded breakups among the ever-increasing number of cohabiting parents. Total family dissolution rates in Scandinavia are actually up. I’ve made these points before, but Badgett and others just keep citing the misleading numbers.

European demographers know perfectly well that marriage in Scandinavia is in deep trouble. British demographer David Coleman and senior Dutch demographer Joop Garssen have written that “marriage is becoming a minority status” in Scandinavia. In Denmark, a slight majority of all children are still born within marriage. Yet citing the 60 percent out-of-wedlock birthrate for firstborn children, Danish demographers Wehner, Kambskard, and Abrahamson argue that marriage has ceased to be the normative setting for Danish family life.

All About the Family

Badgett uses several tricks to dodge the problem of out-of-wedlock birthrates in excess of 50 percent. Most cohabiting parents eventually marry, Badgett emphasizes. Because of that, if you look at the number of Norwegian children who are actually living with their own married parents, it is 61 percent. Well, that is certainly more than half, but a number that low hardly means that Norwegian marriage is strong. And as I showed in “Unhealthy Half-Truths,” in Norway’s pro-gay-marriage north, the numbers of Norwegian children actually living with their own married parents is now almost certainly at or below 50 percent.

Of course, the fact that “most” cohabiting parents in Scandinavia eventually marry slides over the core point. A great many parental cohabiters break up before they ever decide to marry — and they do so at rates two to three times higher than married parents. So many cohabiting parents break up before they ever decide to marry that demographer Mai Heide Ottosen has said, “to be a child of young [Danish] parents nowadays has become a risky affair.”

Badgett cites a study showing that American children spend even less time in total with their own married parents than Norwegians. But that study’s Norwegian data comes from the 1980s. Since then, America’s family disruptions have leveled off while Norway’s have worsened. In any case, staging a family-stability contest between America and Scandinavia misses the point. American families are unstable because of our high divorce rates and sky-high rates of underclass single parenting. The fact that our family system has weakened is precisely the problem. America’s already significant family vulnerabilities would be pushed beyond the breaking point if Scandinavian-style parental cohabitation spread here. Today, more than ten percent of American children are born to cohabiting parents. And studies show that cohabiting parents in America break up at a much higher rate than they already do in Scandinavia. So a spike in Scandinavian-style parental cohabitation in America would deal a major new blow to our already vulnerable family system.

Badgett ignores my points about the differences between Norway’s socially liberal north and it’s more conservative and religious south. The parts of Norway where same-sex unions are most accepted have by far the highest out-of-wedlock birthrates. That helps make my causal point. It also helps explain why Norway’s out-of-wedlock birthrate is rising more slowly now — something Badgett makes much of. Rising Norwegian out-of-wedlock births have hit a wall of resistance in the recalcitrant, religious south.

In any case, at very high levels, the out-of-wedlock birthrate has to rise more slowly. That’s because super-high out-of-wedlock birthrates signal a radical shift in the way parents think about marriage. In the early stages of Scandinavian-style cohabitation, parents think of first, and even second born children as tests of a relationship that might someday eventuate in marriage. But as parental cohabitation grows in popularity parents have two or more children without getting married at all. So out-of-wedlock birthrates rise more slowly as they move beyond the 40- and 50-percent marks because they are pushing through the final and toughest pockets of cultural support for marriage. That’s why the slow but steady increase in Norway’s already high out-of-wedlock birthrates is so frightening. It shows that even the resistant and conservative south is beginning to accept parental cohabitation, while the liberal north is beginning to abandon the idea of marriage altogether.

Okay, says Badgett, let’s provisionally grant Kurtz’s distinction between high and low-out-wedlock birthrate countries. Even given that, says Badgett, out-of-wedlock births have been “soaring” in some traditionally low out-of-wedlock birthrate nations (Ireland, Luxembourg, Hungary, Lithuania, and several other eastern European countries). And none of them but the Netherlands has gay marriage. So how could gay marriage be the cause of higher out of wedlock birthrates in the Netherlands when comparable countries that don’t have gay marriage have similar rises?

Gay marriage is not the only cause of rising out-of-wedlock birthrates. I never said it was and it doesn’t take a demographer to realize that lots of factors contribute to husbandless women having babies. In fact the out-of-wedlock birthrates that are rising so rapidly in the countries Badgett cites are rising for a distinct and clear reason. These nations are economically and culturally modernizing. For good or ill, they are increasingly adopting postmodern sexual mores, yet provide only limited access to contraception and/or abortion. That juxtaposition of divergent and even contradictory family and sexual systems creates problems. In Ireland, for example, sexual mores are loosening. Yet the Irish still tightly restrict contraception and abortion. That combination has pushed out-of-wedlock birthrates way up.

Something similar is happening in Lithuania, and in other eastern European countries. In a recent study of contraceptive availability in Europe, Erik Klijzing found that contraceptives were far less available in Lithuania and Bulgaria than in other European countries. Some eastern European nations have as little access to contraception as third-world countries. Curiously, of all the countries Klijzing studied, only in Lithuania do educated people have even less access to contraceptives than uneducated people. That fits the model of a culturally modernizing population with loosening sexual mores, but poor access to contraception. The result is soaring out of wedlock birthrates. (Some will use this to argue for more contraception. Others will argue for abstinence education and a renewal of tradition. My point here is simply that, either way, changes in sexual practices and attitudes have consequences.)

Badgett does list a country that doesn’t have limited contraception: Luxembourg. But while Luxembourg’s out-of-wedlock birthrate is rising, it’s moving up only about half as fast as rates in Ireland, Lithuania, and the Netherlands.

Hungary is the only country that Badgett lists besides the Netherlands that has widely available birth control but a rapidly rising rate of out-of-wedlock births. This does seem to be related to greater cultural individualism. But another factor is the economic stress that has hit eastern Europe as a whole since the collapse of Communism. Under Communism, governments allotted good apartments to married couples. In the post-Communist era that incentive to marriage has disappeared. Large apartments are now too expensive for many couples to afford in stressed economic times. What used to be an incentive to marriage has turned into a disincentive. Yet nothing of this sort is happening in Holland.

The Evidence Is Clear

So the real question raised by Badgett’s comparison is why Holland should be virtually the only traditionally low out-of-wedlock birthrate country in which couples have easy access to birth control where out-of-wedlock birthrates are now “soaring?” I’m grateful to Badgett for (inadvertently) drawing this additional factor to my attention. Rather than weakening my point, it greatly strengthens it. It is clearer than ever that something very unusual is happening in the Netherlands. Demographically, we have a kind of Dutch exceptionalism — and the key difference is that the Dutch added gay marriage to their precarious balance between socially liberal attitudes and traditional family practices. Gay marriage — not restricted contraception or the collapse of Communism — upset that balance, with the result that the out-of-wedlock birthrate began to zoom.

The decline of marriage in the Netherlands in tandem with the growing success of the Dutch movement for gay marriage is the clearest example of gay marriage’s impact on marital decline. Badgett does her best to evade the problem by claiming that the increase in non-marital births began before Dutch registered partnerships took effect in early 1998. That is a weak argument, since an increase of two-percentage points in the out-of-wedlock birthrate for seven consecutive years is rare. It was anything but inevitable that a two-percent increase in non-marital births in 1997 would be followed by six consecutive increases at the same level. In any case, the final vote to establish registered partnerships took place in 1997.

But the deeper point is that the meaning of traditional marriage was transformed every bit as much by the decade-long national movement for gay marriage in Holland as by eventual legal success. That’s why the impact of gay marriage on declining Dutch marriage rates and rising out-of-wedlock birthrates begins well before the actual legal changes were instituted. The recent statement by five Dutch scholars takes exactly that position.

Badgett has no trouble accepting the idea that gay marriage might be an effect of an increasing cultural separation between marriage and parenthood. But how could gay marriage be a product of this cultural trend without also locking in and reinforcing that same cultural stance? I’ve offered abundant cultural evidence that the message conveyed by gay marriage does in fact reinforce acceptance of parental cohabitation.

The Dutch scholars are right. Many factors are in play in European marital decline, and more research is needed to separate out the relative importance of the various factors. But continued marital decline in Scandinavia and the Netherlands has already provided us with enough evidence to call the wisdom of same-sex marriage into serious doubt.

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A renaissance for marriage (Washington Times, 041228)

Marriage is making a comeback. Or, at least, that’s what a panel of 140 observers of marriage including James Q. Wilson and George Gallup, Jr. said last week in a heartening new statement on our oldest social institution. The “marriage movement,” as the authors are calling themselves, compiled existing marriage research to report that a number of key indicators — divorce, unwed childbirth and teen pregnancy, among others — are either pointing in positive directions or have stopped moving in negative ones for the first time in decades. The document, along with other studies making similar conclusions, suggests that maybe some changes for the good in our social attitudes are underway.

The drop in teen pregnancy is the most dramatic: A 10 percent decline in two years. In 2002, the latest year for which we have data, there were 42.9 births per thousand women aged 15-19. That’s down 5 percent from 2001, when 45.3 per thousand occurred. It’s down 10 percent from 2000, when 47.7 births per thousand occurred. Looking at the numbers for early teenagers, the drop was even more dramatic: Pregnancies among girls aged 15-17 were down 14 percent compared with 2000.

An apparent levelling-off of the divorce rate has taken place, too. The data aren’t perfect — some states, including California and Colorado, don’t even keep track of divorce — but the numbers the authors point to, collected by the National Center for Health Statistics at the Centers for Disease Control and Prevention, show that the divorce rate decreased slightly from 1991-2001 in the states that do collect data. In some years, the absolute number of divorces actually seems to have decreased; the NCHS recorded more than 3,000 fewer divorces in 1999 than in 1998 despite a growing population. Americans are still quite divorce-prone: There were nearly a million divorces in 2000. But we are now less likely to divorce than at any time in recent decades.

Then there is unwed childbearing, which has stopped growing relative to the population and hasn’t changed much since 1995. As the NCHS data tell it, 43.7 births per thousand unmarried women took place in 2002, down slightly from 2001 with 43.8 per thousand, reversing a decades-long growth trend. In absolute terms there are more children born to unmarried women than ever — over 1.3 million in 2002, the highest number in the six decades for which we have data — but as a percentage of the population it has evened off.

Even marital happiness seems to have levelled off, at least to judge by survey data. Data from the National Opinion Research Center at the University of Chicago show that the percentage growth in people who say they are dissatisfied with their marriages started declining quickly in the 1970s and continued to do so through the early 1990s, but now have bottomed out. We’re not regaining the numbers lost in the 1970s and 1980s, but at least we’re getting no worse.

Some of the most promising indicators are the ones on blacks. From 1995 to 2000, the proportion of black children living with a married couple increased by about 4 percent. As an analysis by the Center on Budgetary and Policy Priorities shows, the figure for Americans overall seems to have improved slightly, by 1.5 percent, but the gains were much greater for blacks. Maybe the calls for black fathers to become more involved have been heeded after all.

It’s hard to know exactly why these indicators have improved, and there may be reasons to think the changes owe less to attitudinal shifts than we might hope. Immigration may have changed them, for instance, by shifting overall numbers in more conservative directions on matters of family and marriage. Whatever the reason, the authors sound an encouraging note. “For the first time in several generations,” they write, “those working for the renewal of marriage in the United States may have the wind at their backs.”

To take advantage, they’re aiming for what they call a marriage renaissance in the United States, beginning with heightened awareness of marriage’s value as a social institution, its relative decline in recent decades and the recent comeback the numbers are suggesting. The note of optimism they sound is a good beginning. Marriage’s future “is an event in freedom, dependent upon the conscious choices that we make as individuals and as people,” the authors continue. “There is nothing inevitable about the decline of marriage in America.” We agree, and we hope the changing marriage winds continue to fill their sails.

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A Libertarian Case for Marriage? (Christian Post, 050421)

The conservative movement in America--the movement that elected President George W. Bush and continues to change the political landscape--is actually a coalition of different movements joined together by a common rejection of liberalism. The movement includes identifiable groups such as moral conservatives, social traditionalists, neo-conservative transformationists, and libertarians. Together, all reject the expansive power of the state and the idea that government should serve as the centralizing principle within the culture.

It was inevitable that these disparate groups would come into conflict at some point, when the animating principles that govern each group’s worldview compete at the level of public policy and public debate. Nothing exposes the basic conflicts between moral conservatives and libertarians like the issue of sexuality.

Thus, the issue of same-sex marriage threatens to divide the conservative movement, with moral conservatives contending for the sanctity of marriage as the society’s most essential institution, and libertarians arguing for the unfettered freedom of individuals to engage in whatever consensual sexual activities they may choose, without fear of government interference.

The classic libertarian case for the legalization of same-sex marriage came in the form of a commentary by Richard A. Epstein published in the July 13, 2004 edition of The Wall Street Journal. Epstein, a well-known and respected Professor of Law at the University of Chicago, also serves as a Senior Fellow of the Hoover Institution, an institution that has welcomed both moral conservatives and libertarians. Epstein sees the controversy over same-sex marriage as driving “an unhappy wedge between the majoritarian and libertarian wings of conservative legal thought.” He argues that conservatives, following their usual instincts, should be arguing for minimal government interference in the lives of individual citizens. Speaking as an advocate for constitutional libertarianism, Epstein argues that the state “must always put forward some strong justification to limit the freedom of association of ordinary individuals.” Of course, he expands this principle to the right of persons to associate themselves in the institution of marriage, regardless of gender.

In the end, Epstein argues that conservatives and libertarians should simply decide to “live and let live,” allowing same-sex marriage as a concession to the concept of individual liberty. As he sees it, “All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people.” He goes further to argue that the state has no compelling interest in defining marriage as an exclusively heterosexual institution, since the state must make such arguments “without resort to claims of public morals.” In one astounding statement, Epstein declares: “The claim for same-sex marriage is no weaker than any other claim of individual rights on personal and religious matters.” Any other rights?

Professor Epstein’s article is a classic statement of the libertarian position. “The path to social peace lies,” he argues, “in the willingness of all sides to follow a principle of live-and-let-live on deep moral disputes.”

More recently, in the current issue of Policy Review, Jennifer Roback Morse, also a Research Fellow at the Hoover Institution, answers Epstein with a libertarian argument against the legalization of same-sex marriage. Morse, whose work in defense of the family is well recognized, sees marriage as far more than a voluntary contract uniting two individuals in an economic unit. “Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society,” she asserts. Nevertheless, “Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable.”

Morse’s concept of libertarianism sees individual liberty as grounded in an organic set of relationships. Thus, an “organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state. The drive toward a legalistic view of marriage is part of the relentless march toward politicizing every aspect of society.”

In her article, entitled “Marriage and the Limits of Contract,” Jennifer Roback Morse refutes the notion that libertarianism asserts no foundation for the very liberties it seeks to espouse and protect. She rightly sees the encroaching state as the most significant threat to individual liberty, and, with other libertarian theorists, she proposes a view of society that recognizes the fact that “free and responsible individuals” must enjoy protection from the over-weaning power of the state--protections precisely like marriage.

Morse sees the debate over same-sex marriage as “a parenthetical issue” in the more basic controversy over “the meaning of love, marriage, sexuality, and family in a free society.” The push for gay marriage is simply “part of this ongoing process of dethroning marriage from its pride of place.”

Of course, a debate over marriage requires some stable definition of the term. Morse defines marriage as “a society’s normative institution for both sexual activity and the rearing of children.” She recognizes that many on the left see no need for such an institution in the first place, arguing that no single arrangement “should be legally or culturally privileged as the ideal context for sex or childbearing.”

In framing her argument, Morse reminds libertarians of their concern for the sanctity of economic contracts in the marketplace. She urges her fellow libertarians to see marriage as deserving of the same “respect and attention” libertarians grant to the market. Her point is clear: “My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage.”

When Jennifer Roback Morse speaks of an “organic” understanding of marriage, she points to the fact that marriage “emerges spontaneously from society.” She paints a picture of a society in which persons of the opposite sex are attracted to one another, join themselves in marriage, procreate and raise children. “The little society of the family replenishes and sustains itself. Humanity’s natural sociability expresses itself most vibrantly within the family. A minimum-government libertarian can view this self-sustaining system with unadulterated awe.”

Without doubt, the Christian argument for marriage goes far beyond the claim that the institution “emerges spontaneously from society.” After all, we believe that marriage is God’s gracious gift, the central institution for human happiness, and a covenant that displays His own glory in the midst of creation. At the same time, we can appreciate Morse’s insistence that marriage is not the creation of government. “Government does not create marriage any more than government creates jobs,” she insists. Though government may claim a power to create or destroy marriage, Morse argues that marriage, as an organic institution, predates government and claims a higher authority than the state.

By contrast, “The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement.”

Though the state does not create marriage, it does bear a responsibility to respect and to protect the institution. As Morse understands, the state cannot assume “that any laws the state happens to pass will work out just fine.” A disruption or subversion of marriage can lead to social chaos. Just ask the social engineers who have tried to subvert marriage elsewhere.

Sex is central to marriage, and Morse asserts that the sexual urge is what first drives individuals to consider marriage, and then to accept its responsibilities. A society that would liberate the sexual urge from the constraints, weakens its own foundation.

In particular, Morse wants to warn her fellow libertarians that the destruction of marriage--a necessary consequence of adopting same-sex marriage--will invite the state to extend its reach into the most intimate realm of private affairs and to assume the duties and privileges that should belong to marriage and the family. “The alternative to my view that marriage is a naturally occurring pre-political institution is that marriage is strictly a creation of the state,” she acknowledges. “If this is true, then the state can recreate marriage in any form it chooses. Implicit in this view is the decidedly non-libertarian view that the state is the ultimate source of social order.”

Jennifer Roback Morse is on to something of great importance here. She recognizes what so many of her fellow libertarians ignore or miss. Once marriage is defined as nothing more than a creation of state power, the state can manipulate that institution to its own ends. Furthermore, Morse recognizes that many on the left see the government, rather than families, as the first resort in the provision of social services and in the raising of children. Once marriage is destroyed or marginalized as a mere creation of the state, the state can take on its privileges and assert its powers.

Morse also recognizes that “the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people” has been made possible only by the language of individual choice and the concept of personal autonomy. As she recognizes, such rhetoric “has a powerful hold over the American mind.” Nevertheless, she is brave to resist this tide. “It is simply not possible to have a minimum government and a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. The destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.” As she concludes, “A free society needs marriage.”

Christians hold to an even deeper understanding of marriage--one that roots the institution in something deeper than “organic” vision. Nevertheless, Jennifer Roback Morse’s arguments represent a brilliant and useful refutation of precisely the sort of libertarian arguments we now confront in the public square. Her article deserves careful attention from all who value and honor the institution of marriage. We can extend full agreement to her claim that “a free society needs marriage.” To that we must add what we also know-- humanity needs marriage, by God’s design.

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Jennifer Roback Morse’s article, “Marriage and the Limits of Contract: A Libertarian Case”, can be found at the Web Site for Policy Review, published by the Hoover Institution. Richard Epstein’s article, “Live and Let Live,” published July 13, 2004, is available through the archives of The Wall Street Journal.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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Deliberate Childlessness: Moral Rebellion With a New Face (Christian Post, 050608)

According to The Atlanta Journal-Constitution, Joe and Deb Schum of Atlanta aren’t worried about baby proofing their house or buying a car seat. As a matter of fact, the couple doesn’t ever intend to have children and they are proud of their childlessness. According to the newspaper’s report, “the Schums are part of a growing number of couples across the country for whom kids don’t factor in the marriage equation.”

The paper also pointed to the fact that the nation’s birthrate fell last year to an historic low of 66.9 births per 1,000 women age 15-44. That represents a decline of 43% since just 1960. “Many childless couples,” according to the report, “revel in their decision, despite badgering from baffled mothers and friends. Others struggle with the choice before keeping the house kid-free.”

The Schums just don’t want kids to get in the way of their lifestyle. They enjoy cruising to the Georgia mountains on their matching Harley-Davidson motorcycles. They love their gourmet kitchen, outfitted with the very latest stainless steel appliances and trendy countertops. Deb Schum explains, “if we had kids, we would need a table where the kids could do homework.” Clearly, children aren’t a part of their interior design plan.

This pattern of childlessness has caught the attention of others in the media. The left-wing internet site Salon.com actually published a series of articles entitled, “To Breed or Not to Breed.” This series of articles featured couples and individuals who have decided that children are not a part of their chosen lifestyle.

One woman wrote that parenthood just isn’t a part of her plan, regardless of cultural expectations to the contrary. Motherhood just doesn’t fit her self-image or her schedule. “I compete in triathlons; my husband practices martial arts; we both have fulfilling careers; we travel the world ... we enjoy family and friends; we have a fun, intimate relationship.” For others, the bottom line is simply financial. One woman asked: “What would the return be on the investment? Are there any laws that would require my children to pay for my nursing home when I am old? Are they going to be a sufficient hedge against poverty and loneliness?” A return on investment?

Some who have chosen to be childless have actually formed organizations in order to band together. The group “No Kidding” was formed in Atlanta four years ago as a social outlet for couples choosing to have no children. Traci Swartz, an occupational therapist in her thirties, joined “No Kidding” with her husband Jeremy, a 32-year-old computer analyst. “When you don’t have children, you are not involved in any activities like a lot of other people, like soccer and ballet,” said Traci.

She explained that “No Kidding” members are more likely to talk about pets, travel, or other common interests. Kids rarely come up as a topic of conversation. “People think we sit around and talk about how we hate kids, but we almost never mention kids,” Traci explained. No wonder.

Another woman in the Atlanta group explained, “you focus those motherly feelings elsewhere. For us, our dogs get all that love.” That worldview is sick, but more and more common.

Christians must recognize that this rebellion against parenthood represents nothing less than an absolute revolt against God’s design. The Scripture points to barrenness as a great curse and children as a divine gift. The Psalmist declared: “Behold, children are a gift of the Lord, the fruit of the womb is a reward. Like arrows in the hand of a warrior, so are the children of one’s youth. How blessed is the man whose quiver is full of them; they will not be ashamed when they speak with their enemies in the gate.” [Psalm 127: 3-5]

Morally speaking, the epidemic in this regard has nothing to do with those married couples who desire children but are for any reason unable to have them, but in those who are fully capable of having children but reject this intrusion in their lifestyle.

The motto of this new movement of chosen childlessness could be encapsulated by the bumper sticker put out by the Zero Population Growth group in the 1970s: “MAKE LOVE, NOT BABIES.” This is the precise worldview the Scripture rejects. Marriage, sex, and children are part of one package. To deny any part of this wholeness is to reject God’s intention in creation--and His mandate revealed in the Bible.

The sexual revolution has had many manifestations, but we can now see that modern Americans are determined not only to liberate sex for marriage [and even from gender], but also from procreation.

The Scripture does not even envision married couples who choose not to have children. The shocking reality is that some Christians have bought into this lifestyle and claim childlessness as a legitimate option. The rise of modern contraceptives has made this technologically possible. But the fact remains that though childlessness may be made possible by the contraceptive revolution, it remains a form of rebellion against God’s design and order.

Couples are not given the option of chosen childlessness in the biblical revelation. To the contrary, we are commanded to receive children with joy as God’s gifts, and to raise them in the nurture and admonition of the Lord. We are to find many of our deepest joys and satisfactions in the raising of children within the context of the family. Those who reject children want to have the joys of sex and marital companionship without the responsibilities of parenthood. They rely on others to produce and sustain the generations to come.

This epidemic of chosen childlessness will not be corrected by secular rethinking. In an effort to separate the pleasure of sex from the power of procreation, modern Americans think that sex totally free from constraint or conception is their right. Children, of course, do represent a serious constraint on the life of parents. Parenthood is not a hobby, but represents one of the most crucial opportunities for the making of saints found in this life.

The culture is clearly buying into this concept. Legal fights over apartment complexes and other accommodations come down to the claim that adults ought to be able to live in a child-free environment. Others claim that too much tax money and public attention is given to children, and that this is an unfair imposition upon those who choose not to “breed.” Of course, the very use of this terminology betrays the rebellion in this argument. Animals breed. Human beings procreate and raise children to the glory of God.

Without doubt, children do impose themselves upon our creature comforts, waking us up in the middle of the night with demanding needs and inconvenient interruptions. Parents learn all too quickly that children are not only the smiling cherub sleeping in the crib, but also the dirty-faced preschooler, the headstrong teenager, and the boisterous grade-schooler.

The church should insist that the biblical formula calls for adulthood to mean marriage and marriage to mean children. This reminds us of our responsibility to raise boys to be husbands and fathers and girls to be wives and mothers. God’s glory is seen in this, for the family is a critical arena where the glory of God is either displayed or denied. It is just as simple as that.

The church must help this society regain its sanity on the gift of children. Willful barrenness and chosen childlessness must be named as moral rebellion. To demand that marriage means sex--but not children--is to defraud the creator of His joy and pleasure in seeing the saints raising His children. That is just the way it is. No kidding.

[Editor’s Note: This article was originally published on June 28, 2004.]

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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‘The Cohabitation Trap’—Why Marriage Matters (Christian Post, 050817)

Does living together before marriage lead to successful marriages? The very fact that Psychology Today takes up this question in its August 2005 cover story is significant. In essence, the article “The Cohabitation Trap: When ‘Just Living Together’ Sabotages Love,” provides a fascinating look into how secular social science evaluates the question. Written by Nancy Wartik, the article is advertised with the following blurb: “Living together before marriage seems like a smart way to road test the relationship. But cohabitation may lead you to wed for all the wrong reasons--or turn into a one-way trip to splitsville.” Wartik’s article deserves attention, and Christians should be interested to overhear this secular consideration of marriage and its meaning.

Wartik begins the article by describing her own situation--currently married to the man she lived with prior to matrimony. Looking back, she explains her situation: “By then, we were 99 percent sure we’d marry someday--just not without living together first. I couldn’t imagine getting hitched to anyone I hadn’t taken on a test-spin as a roommate. Conjoin with someone before sharing a bathroom? Not likely!”

The logic Wartik describes is shared by millions of Americans. According to her research, nearly five million opposite-sex couples in the United States currently live together without marriage, and millions more have done so at some time in the past. Within just a few years of deciding to live together, most couples either get married or dissolve the relationship.

An amazingly large number of Americans see cohabitation as something of a laboratory for future marriage. Individuals agree to cohabitate, enjoying personal and sexual intimacy, without making the final commitment of marriage. The period of cohabitation amounts to a test-run for marriage. The logic is simple--couples believe that living together will allow them to make an informed and reasonable decision about marriage.

Nevertheless, the research is now clear. Cohabitation prior to marriage serves to undermine, rather than to strengthen the marital bond. Here’s how Wartik summarizes the research: “Couples who move in together before marriage have up to two times the odds of divorce, as compared with couples who marry before living together. Moreover, married couples who have lived together before exchanging vows tend to have poorer-quality marriages than couples who moved in after the wedding. Those who cohabited first report less satisfaction, more arguing, poorer communication and lower levels of commitment.”

Social scientists are alarmed at these findings. Some now believe that cohabitation before marriage undermines the very notion of commitment. As Wartik explains, “The precautions we take to ensure marriage is right for us may wind up working against us.”

There seem to be two major theories offered as explanations for this phenomenon. Wartik describes the “reigning explanation” as “the inertia hypothesis.” This theory suggests “that many of us slide into marriage without ever making an explicit decision to commit. We move in together, we get comfortable, and pretty soon marriage starts to seem like the path of least resistance. Even if the relationship is only tolerable, the next stage seems to be inevitable.”

The inertia theory suggests that marriage just “happens” to couples who have been cohabitating for some time. Paul Amato, a professor at Penn State University, suggests, “There’s an inevitable pressure that creates momentum towards marriage . . . . I’ve talked to many cohabiting couples and they’ll say, ‘My mother was so unhappy until I told her we were getting married--and then she was so relieved.’” Amato also suggests that issues like shared financial arrangements and shared offspring also build the momentum towards marriage.

The inertia theory may offer considerable insight into the way cohabiting men understand marriage. Some researchers suggest that cohabitating men demonstrate a high level of uncertainty about the relationship and bring that same uncertainty into marriage. Wartik cites a 2004 study by psychologist Scott Stanley that found “that men who had lived with their spouse premaritally were on average less committed to their marriages than those who hadn’t.”

The other major theory suggests that the experience of cohabitation itself weakens the marital bond. As Amato explains, “A couple of studies show that when couples cohabit, they tend to adopt less conventional beliefs about marriage and divorce, and it tends to make them less religious.” As Wartik expands the idea: “That could translate, once married, to a greater willingness to consider options that are traditionally frowned upon--like saying ‘so long’ to an ailing marriage.”

Making an observation that would seem obvious to many readers, Wartik suggests that cohabitating couples “may just be less traditional people--less likely to stay in an unhappy marriage in observance of religious beliefs or for the sake of appearances.” Interestingly, William Pinsof, president of the Family Institute at Northwestern University argues, “Those who choose to live together before getting married have a different attitude about marriage to begin with. I think cohabiting is a reflection of that, not a cause of higher divorce rates.”

Wartik describes the debate over cohabitation as “partly a rehash of the values and morals conflicts that tend to become political footballs in America today.” Nevertheless, she insists that all parties must agree that cohabitation is often injurious to children. “Cohabitating relationships, by their nature, appear to be less fulfilling than marital relationships,” she argues. People who cohabit say they are less satisfied and more likely to feel depressed, the result, perhaps, of “the inherent lack of stability” in cohabitating relationships. Wartik then asserts, “As a result, cohabitation is not an ideal living arrangement for children. Emotionally or academically, the children of cohabiters just don’t do as well, on average, as those with two married parents, and money doesn’t fully explain the difference.”

Nancy Wartik concludes her article by suggesting ways that cohabitation can be made less injurious to marriage. Specifically, she suggests that couples should not cohabitate until they have settled the marriage question, preferably by a formal engagement prior to living together.

What should Christians think of this research? In the first place, the social evidence as indicated in this research demonstrates what happens when sex and intimacy are decoupled from marriage. In a profound way, this research affirms the integrity of marriage as an institution and should serve to remind Christians that sexual intimacy prior to marriage can only serve to undermine the integrity of the institution and the vows that hold it together. When access to sex is liberated from the responsibilities and commitments of marriage, marriage is inevitably redefined as an option.

The very fact that couples who cohabit before marriage have less satisfactory marriages than those who did not points to the basic goodness of marriage and to the importance of marriage as an institution central to human health, happiness, and wholeness.

Wartik gets to the heart of the issue when she suggests that many persons “have different standards for living partners than for life partners.” In essence, that’s the problem. The biblical understanding of marriage begins with the presupposition that life partners and living partners should be one and the same. To suggest otherwise is to miss the entire point of marriage. When Amato explains, “People are much fussier about whom they marry than whom they cohabitate with,” this point is made in vivid terms.

Christians do not base our understanding of marriage and cohabitation on sociological research. Our Creator has defined marriage for us and commanded respect for marriage as a central human responsibility. We know that cohabitation is injurious to marriage precisely because it violates God’s command that sex and marriage are never to be separated. Nevertheless, an article like this serves to remind us that human experience does prove the truthfulness of God’s Word. When the world of social science comes face to face with the reality that cohabitation undermines marriage, the church should take notice.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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The Culture of Freedom and the Future of Marriage (Christian Post, 050914)

“It is not controversial to contend that in the United States, constitutional law serves as a decisive battleground in the struggle over freedom’s moral and political meaning,” asserts Peter Berkowitz. “It is another matter to assess the impact of the battleground on the battle, to clarify the current balance of power, and to anticipate the battles to come.”

Berkowitz, a professor of law at George Mason University School of Law and a fellow at Stanford University’s Hoover Institution, addresses the future of the U.S. Supreme Court and the concept of freedom in a fascinating essay published in the current issue of Policy Review. In “The Court, the Constitution, and the Culture of Freedom,” Berkowitz argues that an expansive concept of human liberty lies behind the Supreme Court’s tradition of jurisprudence. He goes on to argue that this progressive understanding of human freedom is likely to mean that the nation’s high court will one day decide that access to same-sex marriage is nothing less than a right guaranteed under the U.S. Constitution.

Berkowitz begins by establishing that, “To say of some law or action or institution that it is constitutional is not to offer very high praise.” After all, the constitution has been understood to guarantee an individual’s right to various actions and expressions that the majority would find distasteful at the least. The U.S. Constitution is the nation’s supreme law. “Because it is a liberal constitution, one whose first purpose is to protect personal freedom, the supreme law of the land avoids taking a stand on the supreme issues,” Berkowitz explains. “It does not aim to instruct people on the virtues, or the content of happiness, or the path to salvation. That’s not because it supposes that virtue is irrelevant, happiness has no content, or salvation is a delusion. Rather, the Constitution presupposes that the people, as individuals and through the various associations and groups they form, will pursue these goods. And it lays down a framework within which we, as a people, can maintain a society where each has the liberty to pursue, consistent with a like liberty for others, virtue, happiness, and salvation in the way each regards as fitting.”

That said, the role of the U.S. Supreme Court in interpreting the Constitution represents an enormous power to reshape the entire culture. Berkowitz observes that the vast majority of formal written opinions handed down by the Court are of little interest to the big questions of life. Most deal with technical questions and matters of interest only to practicing lawyers and the parties directly related to the cases.

Nevertheless, many of the most divisive moral, political, and social questions of our times have been decided, at least with respect to the law, by the U.S. Supreme Court. The Court has exerted a vast influence over American life, and it threatens to expand this reach even farther.

Berkowitz understands that the textual issue at stake in the Court’s most controversial decisions tends to be located in “the grandest clauses of the Fourteenth Amendment.” These clauses include the due process clause which declares that no state “shall deprive any person of life, liberty, or property, without due process of law.” Similarly, the equal protection clause declares that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The original purpose of the Fourteenth Amendment was to protect African Americans against denial of their rights by state governments. Nevertheless, the Supreme Court has expanded these clauses into an entire culture of freedom--and that culture of freedom has been radically expanded over the last several decades.

Setting aside that historical context, Berkowitz argues that “there are plausible arguments for deriving substance, or particular rights, from the due process and equal protection clauses.” He acknowledges that the Supreme Court, at least at first, was reluctant to derive such rights from these clauses. He cites an 1872 case in which the Court declared that the expansion of rights through these clauses was forbidden. But, a little more than thirty years later, the Court changed its mind, setting a precedent for future courts to follow.

Berkowitz then considers the implications of this shift in the Court’s decision-making by looking at the issues of abortion, affirmative action, and same-sex marriage.

Berkowitz’s analysis of the Court’s abortion cases is both important and insightful. He carefully traces the Court’s decisions related to matters of sex and reproduction, observing that a majority of justices determined that no law could be judged constitutional “which denied individual liberties the Court regarded as fundamental or essential to the very idea of freedom under law.”

Berkowitz looks closely at the Court’s 1973 decision of Roe v. Wade. Interestingly, Berkowitz asserts that both sides in the abortion debate framed their arguments in terms of freedom and liberty. Both camps are “pro-personal freedom” he asserts, and the competing arguments on the question of abortion are framed in terms of individual freedom. On the one hand, proponents of abortion argue for a woman’s freedom to abort an unwanted pregnancy. Opponents of abortion argue for the freedom and liberty rights of the unborn child. Berkowitz argues that in Roe v. Wade and successive cases (especially Planned Parenthood v. Casey), the Court’s majority has tried to strike a balance between these freedoms.

Berkowitz concedes that Roe “has been subject to devastating criticism,” but he goes on to argue that the decision still defines constitutional interpretation.

The Roe decision was an expansion of the concept of freedom the Court declared in Griswold v. Connecticut in 1965. In that case, Justice William O. Douglas declared that the Constitution guarantees “a zone of privacy” for married couples. Later decisions expanded that zone of privacy to individuals. But if Roe expanded Griswold, Casey expanded Roe. Berkowitz cites the oft-quoted expression found in Justice Anthony Kennedy’s majority opinion. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy asserted. This represented a sweeping and virtually limitless claim of individual liberty--a claim the Court would certainly find impossible to imply in other areas of the law.

As Berkowitz explains, “For what the Court appeared to be saying was not only that each individual had the right to determine for himself or herself what constituted personhood and the meaning of life, but also that the supreme law of the land had an obligation to give legal effect to each individual’s determination.” Even as Berkowitz acknowledges the impossibility of applying this principle wholesale, he asserts: “That such a notion received expression at all suggests the direction in which the justices’ thinking about autonomy is headed.”

Next, Berkowitz looks at the Court’s decisions in the area of affirmative action, arguing that the Court has once again attempted to expand freedom. He insightfully observes that liberals and conservatives often switch arguments depending on the issue at stake. In the Court’s most recent decisions concerning affirmative action, the justices have chosen the most expansive definition of human freedom, even as other legitimate conceptions were available. “That a Court on which sit seven justices appointed by conservative presidents made these choices is testimony to the power of the progressive interpretation of liberalism,” he asserts.

Berkowitz then turns to look at the issue of same-sex marriage. As he observes, “fifteen years ago, very few gay men or lesbians, whatever other grievances they harbored, thought or felt themselves to be deprived of civil rights because the law restricted marriage to a man and a woman. Nor did it occur to their fellow citizens that such a right existed.”

Nevertheless, Berkowitz asserts that “today a substantial and growing minority of the public supports same-sex marriage, and even more favor civil unions.”

In considering the issue of same-sex marriage, Berkowitz argues that opponents are now at a unique disadvantage. As he sees it, opponents of same-sex marriage will find themselves defenseless before the U.S. Supreme Court because the case against same-sex marriage is not deeply rooted in an expansion of liberty. As Berkowitz traces the trajectory of the Court, he suggests that same-sex marriage becomes something of an inevitability, given the Court’s previous decisions.

Of course, he can point directly to the Court’s 2003 decision in Lawrence v. Texas. In a scathing dissent, Justice Antonin Scalia declared that the majority’s decision effectively meant the end of all morals legislation in the nation. Berkowitz basically agrees with Scalia’s judgment and goes on to suggest that there is no reason to believe that the Supreme Court will alter its trajectory.

As he sees it, should the issue find its way to the Supreme Court, “the ability of proponents of same-sex marriage to make their case straightforwardly in the language of freedom and the inability of opponents to frame their legitimate concerns in that language will likely result in same-sex marriage’s being enshrined in the supreme law of the land.” We should note that Berkowitz blames conservatives for creating the context in which such claims for liberty can be made. He reasons that conservative acceptance of a supposed constitutional right to contraception, of cohabitation before marriage, and of no-fault divorce undermines any credible claim that marriage must be a heterosexual institution defined by the capacity for human reproduction.

“The American constitutional order speaks the language of freedom,” Berkowitz summarizes. “All of the great moral questions of the day eventually get translated into that language and partisans must turn it to their advantage, or almost certainly their cause will go down to defeat.”

At this point the Christian worldview offers a much-needed corrective. The Bible grounds human freedom not in a sweeping claim of human autonomy, but in the fact that human beings are made in the image of God. Thus, the biblical concept of freedom comes with limits set from the very beginning by our Creator. We are not given the right, as Anthony Kennedy so sweepingly expressed, to define our own concept of existence “and of the mystery of human life.”

Peter Berkowitz’s analysis of the U.S. Supreme Court, the Constitution, and the culture’s commitment to an ever-expanding understanding of freedom should help Christians to think seriously about the true nature of freedom and its limitations. His article will certainly inform the way we understand today’s cultural conflicts over issues such as abortion and same-sex marriage--but it should also serve as a catalyst for how we should understand a Christian description of human freedom. As this article makes clear, we now face two rival visions of human freedom and its meaning. The future of our culture depends upon which vision shapes the policies of the future.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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Ties That No Longer Bind? Marriage and the Virtue of Loyalty (Christian Post, 051019)

Can we live without loyalty? James Q. Wilson argues that the decline of marriage and loyalty now threatens to undermine our social cohesiveness and to produce a generation that cares little about loyalty and prizes freedom over character.

James Q. Wilson is one of America’s foremost public intellectuals. His writings launched a revolution in our understanding of crime and social dysfunction and his insights into our cultural crisis provide some of the most insightful analysis and constructive arguments yet to be found. Now serving as the Ronald Reagan Professor of Public Policy at Pepperdine University, Wilson sees the decline of marriage as a central threat to civilization itself.

In “The Ties That Do Not Bind: The Decline of Marriage and Loyalty,” published in the Fall issue of In Character, Wilson address the decline of marriage within its larger social context--arguing that our current marriage crisis is rooted in a basic failure to reconcile the values of character and freedom.

“Of all of the relationships into which people enter, the family is the most important,” Wilson asserts. “We are raised by parents, confronted with siblings, and introduced to peers through our familial roots. Indeed, human character arises out of the very commitments people make to others in their family or outside of it. Marriage, of course, is the supreme form of that commitment.”

Thus, when marriage is marginalized, character suffers. Wilson knows the statistics. Married couples are happier, in the main, than unmarried persons, and married couples and their children are less likely to commit crimes. Of course, the virtues of marriage far exceed those statistical indicators. Nevertheless, the social fallout caused by the marginalization of marriage is easy to document.

Wilson understands that our current cultural crisis is deeply rooted in a larger intellectual context. He sees the essential tension that produces America’s culture war as a battle between character and freedom. “The Western world is the proud beneficiary of the Enlightenment, that cultural and intellectual movement that espoused freedom, endorsed scientific inquiry, and facilitated trade,” he explains. “But for a good life, mere freedom is not sufficient. It must work with and support commitment, for out of commitment arises the human character that will guide the footsteps of people navigating the tantalizing opportunities that freedom offers.” As Wilson sees it, freedom and character “are not incompatible, but keeping them in balance is a profound challenge for any culture.”

Wilson brings the issue of loyalty to the forefront of his argument on behalf of marriage. The language of loyalty is central to any consideration of the morality of social life, but Wilson offers unique insights into how the virtue of loyalty is foundational to the very idea of marriage.

Is loyalty always a virtue? Wilson acknowledges that loyalty cannot be the supreme moral good, for it is possible to be loyal to the wrong cause, the wrong authority, or the wrong association. As he remarks, “A Nazi is not regarded as a moral person because he is loyal to Nazism.”

Thus, Wilson proposes that loyalty as a positive virtue should be defined as “the natural sociability of people.” Accordingly, “A loyal person is someone who is attached to other people for the long term based on a deep sense of what is due to them.”

In some, Wilson argues that a sense of loyalty is a civilizational essential and that the context of the family--with marriage at the center--is essential to the inculcation of loyalty in the young. Sociopaths are produced when this essential commitment to loyalty is missing. The risk of producing sociopaths escalates significantly when a large number of children and adolescents lack the loyalty-building context of the family with married parents.

“The fundamental social institution that encourages loyalty is the family,” Wilson argues. “An infant is raised by one or two parents and acquires an attachment, usually a strong one, to these people.” Beyond this, the child develops attachments of loyalty to siblings, extended family, and peers as brought into the individual’s life through the structure of the family and its life.

Looking to Western Europe and its ongoing experiment with radicalized social revolution, Wilson suggests that the more radical heirs of the Enlightenment are trying to reap the benefits of marriage while simultaneously undermining the institution. He correctly points to the fact that a growing number of activists and ideologues in the United States are urging this country to follow the same example.

This process is being aided and abetted by the United States Supreme Court. As Wilson recounts: “In the late nineteenth century it spoke of marriage as a ‘sacred obligation’ and a ‘holy estate’ that was the source of civilization itself. By 1972 it had abandoned any such reference and said instead that marriage is ‘an association of two individuals, each with a separate emotional and intellectual makeup.’ Marriage was once a sacrament, then it became a sacred obligation, and now it is a private contract.”

The embrace of cohabitation as an alternative to marriage has accelerated the decline of marital commitment. “Men and women who cohabit have only a weak incentive to pool their resources and to put up with the inevitable emotional bumps that come from sharing an apartment and a bed,” Wilson explains. Couples choose to cohabitate rather than to marry precisely because they do not want to be bound by the public commitment that marriage represents. Furthermore, the stigma and shame associated with unmarried cohabitation--and with having children out of wedlock--has largely evaporated.

“Why does marriage beget loyalty when cohabitation does not?,” Wilson asks. “The difference is that marriage follows a public, legally recognized ceremony in which each person swears before friends and witnesses to love, honor, and cherish the other until death parts them. Cohabitation merely means shacking up.”

Interestingly, Wilson traces a growing cultural recognition that the decline of marriage is detrimental to the society. Nevertheless, the majority of Americans appear unwilling to do anything about the problem. Furthermore, the problem becomes more acute among the young. Wilson notes that sixty percent of high school seniors think that cohabitating before marriage is likely to lead to greater happiness if the couple should ever choose to marry. The exact opposite is the case, of course. A mountain of statistical evidence and research indicates that cohabitation prior to marriage actually weakens any future marriage. Wilson cites sociologist Barbara Dafoe Whitehead’s argument that “cohabitation is not to marriage what spring training is to baseball.”

Wilson sees some signs of hope on the horizon. As he presents his case, he admits that there is “no magic bullet” that will quickly lead to a recovery of marriage and its central loyalties in the near future. Our society has actually created financial and legal incentives to avoid marriage, to give birth to children out of wedlock, and to dissolve marriages at will. In the end, however, James Q. Wilson argues that a recovery of marriage and the virtue of loyalty that marriage and family uniquely inculcate will be essential to the future of our civilization. Once again, the issue comes back to the tension between character and freedom. “In every aspect of our lives we accept limits to freedom,” Wilson explains, “but in the case of the limits set by marriage we gain a great deal in return: longer, healthier lives; better sex; and decent children. Loyalty to spouse and children and relatives enhances our capacity to enjoy the freedom we have.”

Wilson’s analysis affirms the essential goodness of marriage and its central place in civilization. This important article represents both a warning and a sign of hope.

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R. Albert Mohler, Jr. is president of The Southern Baptist Theological Seminary in Louisville, Kentucky.

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Here Come the Brides: Plural marriage is waiting in the wings. (Weekly Standard, 051226)

ON SEPTEMBER 23, 2005, the 46-year-old Victor de Bruijn and his 31-year-old wife of eight years, Bianca, presented themselves to a notary public in the small Dutch border town of Roosendaal. And they brought a friend. Dressed in wedding clothes, Victor and Bianca de Bruijn were formally united with a bridally bedecked Mirjam Geven, a recently divorced 35-year-old whom they’d met several years previously through an Internet chatroom. As the notary validated a samenlevingscontract, or “cohabitation contract,” the three exchanged rings, held a wedding feast, and departed for their honeymoon.

When Mirjam Geven first met Victor and Bianca de Bruijn, she was married. Yet after several meetings between Mirjam, her then-husband, and the De Bruijns, Mirjam left her spouse and moved in with Victor and Bianca. The threesome bought a bigger bed, while Mirjam and her husband divorced. Although neither Mirjam nor Bianca had had a prior relationship with a woman, each had believed for years that she was bisexual. Victor, who describes himself as “100 percent heterosexual,” attributes the trio’s success to his wives’ bisexuality, which he says has the effect of preventing jealousy.

The De Bruijns’ triple union caused a sensation in the Netherlands, drawing coverage from television, radio, and the press. With TV cameras and reporters crowding in, the wedding celebration turned into something of a media circus. Halfway through the festivities, the trio had to appoint one of their guests as a press liaison. The local paper ran several stories on the triple marriage, one devoted entirely to the media madhouse.

News of the Dutch three-way wedding filtered into the United States through a September 26 report by Paul Belien, on his Brussels Journal website. The story spread through the conservative side of the Internet like wildfire, raising a chorus of “I told you so’s” from bloggers who’d long warned of a slippery slope from gay marriage to polygamy.

Meanwhile, gay marriage advocates scrambled to put out the fire. M.V. Lee Badgett, an economist at the University of Massachusetts, Amherst, and research director of the Institute for Gay and Lesbian Strategic Studies, told a sympathetic website, “This [Brussels Journal] article is ridiculous. Don’t be fooled—Dutch law does not allow polygamy.” Badgett suggested that Paul Belien had deliberately mistranslated the Dutch word for “cohabitation contract” as “civil union,” or even “marriage,” so as to leave the false impression that the triple union had more legal weight than it did. Prominent gay-marriage advocate Evan Wolfson, executive director of Freedom to Marry, offered up a detailed legal account of Dutch cohabitation contracts, treating them as a matter of minor significance, in no way comparable to state-recognized registered partnerships.

In short, while the Dutch triple wedding set the conservative blogosphere ablaze with warnings, same-sex marriage advocates dismissed the story as a silly stunt with absolutely no implications for the gay marriage debate. And how did America’s mainstream media adjudicate the radically different responses of same-sex marriage advocates and opponents to events in the Netherlands? By ignoring the entire affair.

Yet there is a story here. And it’s bigger than even those chortling conservative websites claim. While Victor, Bianca, and Mirjam are joined by a private cohabitation contract rather than a state-registered partnership or a full-fledged marriage, their union has already made serious legal, political, and cultural waves in the Netherlands. To observers on both sides of the Dutch gay marriage debate, the De Bruijns’ triple wedding is an unmistakable step down the road to legalized group marriage.

More important, the De Bruijn wedding reveals a heretofore hidden dimension of the gay marriage phenomenon. The De Bruijns’ triple marriage is a bisexual marriage. And, increasingly, bisexuality is emerging as a reason why legalized gay marriage is likely to result in legalized group marriage. If every sexual orientation has a right to construct its own form of marriage, then more changes are surely due. For what gay marriage is to homosexuality, group marriage is to bisexuality. The De Bruijn trio is the tip-off to the fact that a connection between bisexuality and the drive for multipartner marriage has been developing for some time.

AS AMERICAN GAY-MARRIAGE ADVOCATES were quick to point out, the cohabitation contract that joined Victor, Bianca, and Mirjam carries fewer legal implications and less status than either a registered partnership or a marriage—and Dutch trios are still barred from the latter two forms of union. Yet the use of a cohabitation contract for a triple wedding is a step in the direction of group marriage. The conservative and religious Dutch paper Reformatorisch Dagblad reports that this was the first known occurrence in the Netherlands of a cohabitation contract between a married couple and their common girlfriend.

This is important because the Dutch campaign for same-sex marriage was famously premised on a “small step” strategy, with each small increment of recognition creating an impetus for further steps. As Israeli legal scholar Yuval Merin tells it in his 2002 book Equality for Same-Sex Couples, the popularity of cohabitation contracts among Dutch gays in the 1980s helped create laws in the early 1990s forbidding employer discrimination on the basis of sexual orientation—including discrimination between married and unmarried couples in the granting of benefits.

So the use of cohabitation contracts was an important step along the road to same-sex marriage in the Netherlands. And the link between gay marriage and the De Bruijns’ triple contract was immediately recognized by the Dutch. The story in Reformatorisch Dagblad quoted J.W.A. van Dommelen, an attorney opposed to the De Bruijn union, who warned that the path from same-sex cohabitation contracts to same-sex marriage was about to be retraced in the matter of group marriage.

Van Dommelen also noted that legal complications would flow from the overlap between a two-party marriage and a three-party cohabitation contract. The rights and obligations that exist in Dutch marriages and Dutch cohabitation contracts are not identical, and it’s unclear which arrangement would take precedence in case of a conflict. “The structure is completely gone,” said Van Dommelen, as he called on the Dutch minister of justice to set up a working group to reconcile the conflicting claims of dual marriages and multipartner cohabitation contracts. Of course, simply by harmonizing the conflicting claims of dual marriages and triple cohabitation contracts, that working group would be taking yet another “small step” along the road to legal recognition for group marriage in the Netherlands.

The slippery-slope implications of the triple cohabitation contract were immediately evident to the SGP, a small religious party that played a leading role in the failed battle to preserve the traditional definition of marriage in the Netherlands. SGP member of parliament Kees van der Staaij noted the substantial overlap between marriage rights and the rights embodied in cohabitation contracts. Calling the triple cohabitation contract a back-door route to legalized polygamy, Van der Staaij sent a series of formal queries to Justice Minister Piet Hein Donner, asking him to dissolve the De Bruijn contract and to bar more than two persons from entering into cohabitation contracts in the future.

The justice minister’s answers to these queries represent yet another small step—actually several small steps—toward legal and cultural recognition for group marriage in the Netherlands. To begin with, Donner reaffirmed the legality of multipartner cohabitation contracts and pointedly refused to consider any attempt to ban such contracts in the future. Donner also went so far as to assert that contracts regulating multipartner cohabitation can fulfill “a useful regulating function” (also translatable as “a useful structuring role”). In other words, Donner has articulated the rudiments of a “conservative case for group marriage.”

The SGP responded angrily to Donner’s declarations. In the eyes of this small religious party, Donner had effectively introduced a form of legal group marriage to the Netherlands. A party spokesman warned of an impending legal mess—especially if the De Bruijn trio, or others like them, have children. The SGP plans to raise its objections again when parliament considers the justice department’s budget.

It’s not surprising that the first English language report was a bit unclear as to the precise legal status and significance of the triple Dutch union. The Dutch themselves are confused about it. One of the articles from which Paul Belien drew his original report is careful to distinguish between formal marriage and the cohabitation contract actually signed by Victor, Bianca, and Mirjam. Yet the very same article says that Victor now “officially” has “two wives.”

Even Dutch liberals acknowledge the implications of the De Bruijn wedding. Jan Martens, a reporter and opinion columnist for BN/DeStem, the local paper in Roosendaal, wrote an opinion piece mocking opposition to group marriage by religious parties like the SGP. Noting the substantial overlap between cohabitation contracts and marriage, Martens said he agreed with the SGP that the De Bruijn triple union amounts to a “short-cut to polygamy.” Yet Martens emphasized that he “couldn’t care less if you have two, three, four, or sixty-nine wives or husbands.”

Minority religious parties and their newspapers excepted, this mixture of approval and indifference seems to be the mainstream Dutch reaction so far. Not only has Justice Minister Donner articulated the beginnings of a conservative case for group marriage, but Green party spokesman Femke Halsema, a key backer of gay marriage, has affirmed her party’s support for the recognition of multipartner unions. The public has not been inclined to protest these developments, and the De Bruijn trio have been welcomed by their neighbors.

Dutch fascination with the De Bruijn story appears to have made an impression on BN/DeStem. On November 19, less than two months after the triple wedding, the paper ran a story headlined “Remembering birthdays is a disaster,” about the family of a Belgian named Serge Régnier. Belgium is Holland’s neighbor and close cultural cousin. It became the second country to legalize gay marriage when it adopted the practice in 2003, two years after the Netherlands. In the Belgian town of Marcinelle, Serge Régnier lives with three women, only one of whom he is legally married to, but all three of whom he considers wives. The family has a total of 30 children (5 by one wife’s first husband), with another on the way.

Serge Régnier had been married to his wife Christine for four years when Christine’s unmarried sister Karine moved in with the couple. Karine wanted children, and after discussing the matter with her sister and brother-in-law, it was agreed that Serge would father children with Karine and live with the women as a threesome. Into this ménage à trois came Judith, a childhood sweetheart of Serge. Serge had told Christine when he married her that, if she were ever available, Judith would have to be welcomed into their house. When Judith divorced her first husband and showed up on the Régniers’ doorstep, all agreed to admit her. The result is one husband, three wives, and 30 children, with several more children hoped for by the wives. Serge is unemployed, and the entire family is supported by government subsidies. The women say there is no jealousy among them and they would even welcome a fourth wife if she was “nice.”

By early December, the Régnier story had been picked up by numerous Dutch bloggers and the national press. So the De Bruijn union seems to have opened up the Dutch public to the idea of multipartner marriage. News reports on the Régniers are filled with humor and fascination, with little concern for the potential legal ramifications. It’s this cultural response that counts.

When it comes to marriage, culture shapes law. (It’s a two-way street, of course. Law also influences culture.) After all, Dutch same-sex marriage advocates still celebrate the foundational role of symbolic gay marriage registries in the early 1990s. Although these had absolutely no legal status, the publicity and sympathy they generated are now widely recognized as keys to the success of the Dutch campaign for legal same-sex unions and ultimately marriage. How odd, then, that American gay-marriage advocates should respond to the triple Dutch wedding with hair-splitting legal discourses, while ignoring the Dutch media frenzy and subsequent signs of cultural acceptance—for a union with far more legal substance than Holland’s first symbolic gay marriages. Despite the denials of gay-marriage advocates, in both legal and cultural terms, Victor, Bianca, and Mirjam’s triple union is a serious move toward legalized group marriage in the Netherlands.

GIVEN THE STIR IN HOLLAND, it’s remarkable that not a single American mainstream media outlet carried a story on the triple Dutch wedding. Of course the media were all over the Dutch gay marriage story when they thought the experiment had been a success. In late 2003 and early 2004, in the wake of the Supreme Court’s Lawrence v. Texas decision, which ruled sodomy laws unconstitutional, and looming gay marriage in Massachusetts, several American papers carried reports from the Netherlands. The common theme was that Holland had experienced no ill effects from gay marriage, and that the issue was no longer contentious.

Unsurprisingly, the chief sources for these articles were themselves prominent advocates of gay marriage, who dismissed any notion that the reform might have had negative consequences. Had reporters for the Washington Post, the Christian Science Monitor, the Philadelphia Inquirer, or the Chicago Tribune cared to check the Dutch demographic record, they might have discovered the substantial increases in out-of-wedlock births and parental cohabitation that emerged in the wake of the movement for same-sex marriage (see “Going Dutch?” The Weekly Standard, May 31, 2004).

Still, although opposition to same-sex marriage from religious parties like the SGP unquestionably remains, the American media are correct to report that the majority of Dutch citizens have accepted the innovation. The press has simply missed the meaning of that public shift. Broad Dutch acceptance of same-sex marriage means that marriage as an institution has been detached from parenthood in the public mind. That is why the practice of parental cohabitation has grown so quickly in the Netherlands. By the same token, the shoulder shrug that followed the triple wedding story shows that legalized group marriage in the Netherlands is now a real possibility. If the calm Dutch response to same-sex marriage is news, it’s tough to see why the Dutch public’s fascinated acceptance of a triple union isn’t also news. But, of course, the mainstream American press understands that the triple Dutch wedding cannot be spun in a way that helps the cause of same-sex marriage with the American public. Thus the silence.

ALTHOUGH THE TRIPLE Dutch union has been loosely styled “polygamy,” it’s actually a sterling example of polyamory. Polyamorists practice “responsible nonmonogamy”—open, loving, and stable relationships among more than two people (see “Beyond Gay Marriage: The Road to Polyamory,” The Weekly Standard, August 4 / August 11, 2003). Polygamous marriages among fundamentalist Mormons or Muslims don’t depend on a blending of heterosexuality and bisexuality. Yet that combination perfectly embodies the spirit of polyamory. And polyamorists don’t limit themselves to unions of one man and several women. One woman and two men, full-fledged group marriage, a stable couple openly engaging in additional shifting or stable relationships—indeed, almost any combination of partner-number and sexual orientation is possible in a polyamorous sexual grouping.

Polyamorists would call the De Bruijn union a “triad.” In a polyamorous triad, all three partners are sexually connected. This contrasts with a three-person “V,” in which only one of the partners (called the “hinge” or “pivot”) has a sexual relationship with the other two. So the bisexuality of Bianca and Mirjam classifies the De Bruijn union as a polyamorous bisexual triad. In another sense, the De Bruijn marriage is also a gay marriage. The Bianca-Mirjam component of the union is gay, and legalized gay marriage in Holland has clearly helped make the idea of a legally recognized bisexual triad thinkable.

More broadly, the worldwide campaign for gay marriage seems to have stirred up an active bisexual movement in its wake. Bisexuals have traditionally been one of the least visible components of the GLBT (gay, lesbian, bisexual, transgendered) alliance. After a flurry of publicity in the 1970s, at the height of the sexual revolution, bisexuality faded from public view. Yet the 1990s brought new attention, with articles in Time and Newsweek touting the emergence of bisexuality as a distinctive and politically tinged identity (and linking bisexuality to nonmonogamous marriage). In recent years, websites, books, and academic studies devoted to bisexuality have proliferated, culminating in 2001 in the founding of one of the movement’s key organs, the Journal of Bisexuality.

One of the first issues of the Journal of Bisexuality featured an account of a Dutch man’s discovery of his own bisexuality. The story is presented as a model for public acceptance of bisexuality, the twist being that the narrative doubles as a political brief for polyamory. Married with two children, Koen Brand declared his bisexuality in 1999, at the height of the gay marriage debate in the Netherlands. Brand then joined the Dutch National Network for Bisexuality and took part in movement activities. Brand also met another married bisexual man. While both men remained married, the two wives agreed to allow their husbands to establish a public and steady sexual relationship. Friends, family, and coworkers also accepted the arrangement. So the two marriages were thus effectively merged into a larger entity, with the men serving as pivots in two overlapping polyamorous V’s.

One of the wives remains uncomfortable with this arrangement, while Brand’s own wife is at least open to Brand’s wish to form a threesome with his male partner. So the story ends with at least the prospect of one marriage breaking up, while the second converts to a polyamorous bisexual triad, as happened when Victor and Bianca de Bruijn met Mirjam Geven and her then husband.

None of this is to gainsay the power of Brand’s narrative. On the contrary, precisely because the personal challenges confronting bisexuals are profound, the emerging bisexual call for polyamorous marriage is going to take on formidable legal force. In a world fully accepting of gay marriage, it will be difficult to withhold equal standing from another organized sexual minority.

Brand explains the willingness of family, friends, and coworkers to accept his openly polyamorous marriage by pointing to the Netherlands’ social liberalism—to its legal soft drugs and its famous tolerance for sexual minorities. After all, Brand’s successful construction of a publicly polyamorous union came at precisely the moment when same-sex marriage was formally legalized in Holland. That is why the Journal of Bisexuality has put Brand’s case forward as a model for other countries. And Brand makes it clear that simple acceptance of a given individual’s bisexual orientation, however heartfelt, is not enough. Just as it’s often said that gays have not been truly accepted until same-sex marriage is legal, Brand maintains that true acceptance for bisexuality requires the social ratification of polyamory.

THE GERM OF AN ORGANIZED EFFORT to legalize polyamory in the United States can be found in the Unitarian Church. Although few realize it, the Unitarian Church, headquartered in Boston, played a critical role in the legalization of same-sex marriage in Massachusetts. Julie and Hillary Goodridge, lead plaintiffs in Goodridge v. Department of Public Health, were married at the headquarters of the Unitarian Universalists in a ceremony presided over by the Reverend William G. Sinkford, president of the Unitarian Universalist Association. Hillary Goodridge is program director of the Unitarian Universalist Funding Program. And Unitarian churches in Massachusetts played a key role in the struggle over gay marriage, with sermons, activism, and eventually with marriage ceremonies for same-sex couples. Choosing a strongly church-affiliated couple like the Goodridges as lead plaintiffs was an important part of the winning strategy in the Goodridge case.

It’s a matter of interest, therefore, that an organization to promote public acceptance of polyamory has been formed in association with the Unitarian Church. Unitarian Universalists for Polyamory Awareness (UUPA) was established in the summer of 1999. At the time, the news media in Boston carried reports from neighboring Vermont, where the soon-to-be-famous civil unions case was about to be decided. And the echo effect of the gay marriage battle on the polyamory movement goes back even further. The first informal Unitarian polyamory discussion group gathered in Hawaii in 1994, in the wake of the first state supreme court decision favorable to same-sex marriage in the United States.

“Our vision,” says UUPA’s website, “is for Unitarian Universalism to become the first poly-welcoming mainstream religious denomination.” Those familiar with Unitarianism’s role in the legalization of gay marriage understand the legal-political strategy implicit in that statement. UUPA’s political goals are spelled out by Harlan White, a physician and leading UUPA activist, on the society’s website. Invoking the trial of April Divilbiss, the first American polyamorist to confront the courts, White says, “We are concerned that we may become the center of the next great social justice firestorm in America.”

White maintains that American polyamorists are growing in number. An exact count is impossible, since polyamory is still surrounded by secrecy. Polyamorists depend on the Internet to connect. Even so, says White, “attendance at conferences is up, email lists and websites are proliferating, and poly support groups are growing in number and size.” As for the Unitarian polyamorists, their email list has several hundred subscribers, and the group has put on well-attended workshops at Unitarian General Assemblies since 2002. And although the number of open polyamorists is limited, some Unitarian ministers already perform “joining ceremonies” for polyamorous families.

White featured prominently in a 2003 Associated Press story on the Unitarian polyamorists: “No one uttered a word when Harlan White walked into church one day with two women, one on each arm. They were, he says, accepted like any other family in his Unitarian congregation.” But it was a second article on Unitarian polyamory, in the April 20, 2004, San Francisco Chronicle, that rocked the Unitarian Church. What made waves was the impression that the church itself had formally embraced polyamory.

Shortly after the second article appeared, UUPA president Sinkford circulated a statement among Unitarians acknowledging that press interest in Unitarian polyamory had “generated a great deal of anxiety” among the church’s leadership. “Many of us are concerned that such press coverage might impair our ability to witness effectively for our core justice commitments.” Sinkford appeared to be expressing a concern that had been stated more baldly in the original Chronicle article. According to the Chronicle, many of the students and faculty at the Unitarians’ key west-coast seminary, Starr King School for the Ministry, in Berkeley, see the polyamory movement as a threat to the struggle for same-sex marriage.

In other words, Unitarians understand that moving too swiftly or openly to legitimize polyamory could validate the slippery-slope argument against same-sex marriage. So with news coverage prematurely blowing the cover off the Unitarians’ long-term plan to legalize polyamory, President Sinkford took steps to hold UUPA at arm’s length. Sinkford issued a public “clarification” that distanced the church from any formal endorsement of polyamory, yet also left room for the UUPA to remain a “related organization.”

Meanwhile, Rebecca Ann Parker, president of the prestigious Starr King school, issued a very different and much less public clarification for Unitarians themselves. The Chronicle had quoted Parker in a way that made her seem opposed to polyamory. To correct this impression, Parker posted the following statement on a Unitarian website: “For the record: I support Unitarians for Polyamory Awareness and completely disagree with those who use their belief that monogamous heterosexual marriage is ordained by God as a basis for rejecting same-sex couples and polyamorous relationships.”

But the clearest statement of strategic intent came from Valerie White, a lawyer and executive director of the Sexual Freedom Legal Defense and Education Fund. A founder of UUPA along with her brother, Harlan White, Valerie White let Bi Magazine know in 2003 that UUPA planned to keep its quest for recognition on temporary hold: “It would put too much ammunition in the hands of the opponents of gay marriage. . . . Our brothers and sisters in the LGBT community are fighting a battle that they’re close to winning, and we don’t want to do anything that would cause that fight to take a step backwards.” In short, the Unitarians are holding the polyamorists at arm’s length only until gay marriage has been safely legalized across the nation. At that point, the Unitarian campaign for state-recognized polyamorous marriage will almost certainly begin.

The other fascinating angle in the San Francisco Chronicle’s coverage of the Unitarian polyamorists was the prominence of bisexuality. Most members of UUPA are either bisexual or heterosexual. One polyamorist minister who had recently come out to his congregation as a bisexual treated polyamory and bisexuality synonymously. “Our denomination has been welcoming to gays and lesbians and transgendered people,” he said. “Bisexuals have not received the recognition they deserve.” In other words, anything less than formal church recognition of polyamory is discrimination against bisexuals.

TWO DEVELOPING LINES of legal argument may someday bring about state recognition for polyamorous marriage: the argument from polyamory, and the argument from bisexuality. In a 2004 law review article, Elizabeth F. Emens, of the University of Chicago Law School, offers the argument from polyamory (see “Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence,” New York University Review of Law & Social Change). Polyamory is more than the mere practice of multiple sexual partnership, says Emens. Polyamory is also a disposition, broadly analogous to the disposition toward homosexuality. Insofar as laws of marriage, partnership, or housing discriminate against polyamorous partnerships, maintains Emens, they place unfair burdens on people with “poly” dispositions. Emens takes her cue here from the polyamorists themselves, who talk about their “poly” inclinations the way gays talk about homosexuality. For example, polyamorists debate whether to keep their poly dispositions “in the closet” or to “come out.”

Emens’s case for a poly disposition was inspired by the radical lesbian thinker Adrienne Rich, who famously put forward a “continuum model” of lesbianism. Rich argued that all women, lesbian-identified or not, are in some sense lesbians. If women could just discover where they fall on the “lesbian continuum,” then even those women who remain heterosexually identified would abandon any prejudice against homosexuality.

Following Rich, Emens argues that all of us have a bit of “poly” inside. By discovering and accepting our own desires for multiple sexual partners, then even those who remain monogamous would abandon their prejudice against polyamorists. Of course some people fall at the extreme ends of these continuums. Some folks are intensely monogamous, for example. But by the same token, others are intensely polyamorous. Whether for biological or cultural reasons, says Emens, some folks simply cannot live happily without multiple simultaneous sexual partners. And for those people, Emens argues, our current system of marriage is every bit as unjust as it is for homosexuals.

It may seem that a case like this could never get to court, yet in a sense it already has. Emens offers an analysis of the 1999 case of April Divilbiss, who was forced by a court in Tennessee to choose between keeping custody of her child and continuing to live with two “husbands.” Yet it’s clear that the case could have turned out differently. The judge in the Divilbiss case ignored the findings of four court appointed experts, each of whom found in favor of the polyamorists. The judge also took a number of other liberties he would have been unlikely to get away with in a more closely watched and aggressively litigated case. So Emens’s brief in defense of polyamory is likely to be tested and developed in future court cases.

The second legal strategy available to the polyamorists is the argument from bisexuality. No need here to validate anything as novel-sounding as a “polyamorous disposition.” A case for polyamory can easily be built on the more venerable orientation of bisexuality. While no legal scholar has offered such a case, the groundwork is being laid by Kenji Yoshino, a professor at Yale Law School and deputy dean for intellectual life.

Yoshino’s 2000 Stanford Law Review article “The Epistemic Contract of Bisexual Erasure” has a bewildering title but a fascinating thesis. Yoshino argues that bisexuality is far more prevalent than is usually recognized. The relative invisibility of bisexuality, says Yoshino, can be attributed to the mutual interest of heterosexuals and homosexuals in minimizing its significance. But according to Yoshino, the bisexuality movement is on the rise, and bound to become more visible, with potentially major consequences for the law and politics of sexual orientation.

Defining bisexuality as a “more than incidental desire” for partners of both sexes, Yoshino examines the best available academic studies on sexual orientation and finds that each of them estimates the number of bisexuals as equivalent to, or greater than, the number of homosexuals. Up to now, the number of people who actively think of themselves as bisexuals has been much smaller than the number who’ve shown a “more than incidental” desire for partners of both sexes. But that, argues Yoshino, is because both heterosexuals and homosexuals have an interest in convincing bisexuals that they’ve got to make an all-or-nothing choice between heterosexuality and homosexuality.

Heterosexuals, for example, have an interest in preserving norms of monogamy, and bisexuality “destabilizes” norms of monogamy. Homosexuals, notes Yoshino, have an interest in defending the notion of an immutable homosexual orientation, since that is often the key to persuading a court that they have suffered discrimination. And homosexuals, adds Yoshino, have an interest in maximizing the number of people in their movement. For all these reasons and more, Yoshino argues, the cultural space in which bisexuals might embrace and acknowledge their own sexual identity has been minimized. Yoshino goes on to highlight the considerable evidence for the recent emergence of bisexuality as a movement, and predicts that in our current cultural climate—and given the numerical potential—bisexuality activism will continue to grow.

In addition to establishing the numerical and political significance of bisexuality, Yoshino lays down an argument that could easily be deployed to legalize polyamory: “To the extent that bisexuals are not permitted to express their dual desires, they might fairly characterize themselves as harmed.” Yet Yoshino does not lay out a bisexual defense of polyamory. Instead Yoshino attacks—rightly—the stereotype that treats all bisexuals as nonmonogamous. Yet the same research that establishes the monogamous preferences of many bisexuals also confirms that bisexuals tend toward nonmonogamy at substantially higher rates than homosexuals. (See Paula C. Rust, “Monogamy and Polyamory: Relationship Issues for Bisexuals” in Firestein, ed., Bisexuality: The Psychology and Politics of an Invisible Minority.) That fact could easily be turned by a bisexuality rights movement into an argument for legalized polyamory.

Yoshino, by the way, is no fringe figure. In addition to being a dean and professor at what is arguably the country’s most prestigious law school, Yoshino and his pioneering, identity-based approach to discrimination law were featured in a glowing profile in the New York Times in 2001. An early statement of Yoshino’s views on sexual identity was invoked at a critical point in Justice Stevens’s dissent in Boy Scouts of America v. Dale, the case that permitted the Boy Scouts to refuse openly gay scoutmasters. And Yoshino’s treatment of bisexuality was recently invoked approvingly by Harvard professor Laurence Tribe in an article on the Lawrence v. Texas decision. So we are likely to see someone offer a bisexual-based defense of polyamory, loosely inspired by the Yoshino approach. That is especially so if Yoshino is right about prospects for a growing bisexual rights movement.

of course, the visibility of the bisexual rights movement is still limited. In fact, many bisexuals, or advocates for bisexuals, share a radically post-modernist sensibility that deliberately avoids identity-style politics. Yoshino himself is balanced between identity politics and a postmodern inclination to destabilize and transcend all sexual categories. Yet it is becoming increasingly clear that the polyamorists themselves are the “missing” bisexual liberation movement. Of course, not all polyamorists are bisexual. Victor de Bruijn reminds us that he is “100 percent heterosexual.” Yet Bianca and Mirjam are bisexual. And as in the De Bruijn threesome, the “connecting” function of bisexuals seems to make a great many polyamorous arrangements possible. Of all the sexual sub-groups that participate in polyamory, bisexuals are first among equals. In a certain sense, the movement is theirs.

In 2004, the Journal of Bisexuality published a special double issue on polyamory, also released as the book Plural Loves: Designs for Bi and Poly Living. It’s clear from Plural Loves that the polyamory movement now serves as the de facto political arm of the bisexual liberation struggle. As one contributor notes, “the large number of bi people in the poly movement provides evidence that bisexuality is one of the major driving forces behind polyamory. In other words, polyamory was created and spread partly to satisfy the need for bisexual relationship structures. . . . [T]he majority of poly activists are also bisexual. . . . Poly activism is bi activism. . . . The bi/poly dynamic has the potential to move both communities towards a point of culture-wide visibility, which is a necessary step on the road to acceptance.”

Clearly, visibility and acceptance are on the rise. This past summer, the Baltimore Sun featured a long, friendly article on the polyamorists’ national conference, held in Maryland. In September, the New York Times ran a long personal account of (heterosexual) polyamory in the Sunday Styles section. But the real uptick in public bisexuality/ polyamory began with the October 2005 release in New York of the documentary Three of Hearts: A Postmodern Family.

Three of Hearts is the story of the real-life 13-year relationship of two men and a woman. Together for several years in a gay relationship, two bisexual-leaning men meet a woman and create a threesome that produces two children, one by each man. Although the woman marries one of the men, the entire threesome has a commitment ceremony. The movie records the trio’s eventual breakup, yet the film’s website notes their ongoing commitment to the view that “family is anything we want to create.”

Although Three of Hearts is in limited release in selected art houses across the country, the film is slated for airing on BRAVO in the spring of 2006. The movie’s New York premiere drew media attention to polyamory. Even the conservative New York Post ran a generally positive story on polyamory timed to coincide with the movie’s opening. The flurry of publicity was noticed by London’s Guardian, which reported in November that polyamory had reached a new level of visibility and acceptance in New York.

Three of Hearts was also discussed in a long, sympathetic investigative piece on polyamory in New York magazine. According to New York, the growing popularity of polyamory among New York-area straights is largely inspired by the increasing visibility of gay relationships, with their more “fluid” notions of commitment. New York also found that the most stable polyamorous groupings have as their core element a straight man and a bisexual woman who sticks to one man, rather like the De Bruijn trio.

Of course, many argue that true bisexuality does not exist. In this view—held by a variety of people, from some psychiatrists to certain pro-gay-marriage activists—everyone is either heterosexual or homosexual. From this perspective, so-called bisexuals are either in confused transition from heterosexuality to homosexuality, or simply lying about their supposedly dual sexual inclinations. Alternatively, it’s sometimes said that while female bisexuality does exist, male bisexuality does not. A recent and controversial study reported on by the New York Times in July 2005 claimed to show that truly bisexual attraction in men might not exist.

Whatever view we take of these medical/psychiatric/ philosophical controversies, it is a fact that a bi/poly rights movement exists and is growing. Whether Koen Brand and Bianca and Mirjam de Bruijn are “authentic” bisexuals or “just fooling themselves,” they are clearly capable of sustaining polyamorous bisexual V’s and triads for long enough to make serious political demands. Three of Hearts raises questions about whether the two men in the triangle are bisexual, or simply confused gays. But with two children, a 13-year relationship, and at one time at least a clear desire for legal-ceremonial confirmation, the Three of Hearts trio is a harbinger of demands for legal group marriage. Public interest in the De Bruijn triangle has already raised the visibility and acceptance of polyamorous bisexuality in the Netherlands. For legal-political purposes, acceptance is what matters. And given Yoshino’s numerical analysis, the growth potential for self-identifying bisexuals is substantial.

Americans today respond to gay and bisexual friends and family members in a variety of ways. Despite stereotypical accusations of “homophobia,” the traditionally religious generally offer a mixture compassion and concern. Many other Americans, conservative and liberal alike, are happy to extend friendship, understanding, and acceptance to gay and bisexual relatives and acquaintances. This heightened social tolerance is a good thing. Yet somehow the idea has taken hold that tolerance for sexual minorities requires a radical remake of the institution of marriage. That is a mistake.

The fundamental purpose of marriage is to encourage mothers and fathers to stay bound as a family for the sake of their children. Our liberalized modern marriage system is far from perfect, and certainly doesn’t always succeed in keeping parents together while their children are young. Yet often it does. Unfortunately, once we radically redefine marriage in an effort to solve the problems of adults, the institution is destined to be shattered by a cacophony of grown-up demands.

The De Bruijn trio, Koen Brand, the Unitarian Universalists for Polyamory Awareness, the legal arguments of Elizabeth Emens and Kenji Yoshino, and the bisexual/ polyamory movement in general have been launched into action by the successes of the campaign for gay marriage. In a sense, though, these innovators have jumped too soon. They’ve shown us today—well before same-sex marriage has triumphed nationwide—what would emerge in its aftermath.

Liberals may now put behind-the-scenes pressure on the Dutch government to keep the lid on legalized polyamory for as long as the matter of gay marriage is still unsettled. The Unitarian polyamorists, already conflicted about how much recognition to demand while the gay marriage battle is unresolved, may be driven further underground. But let there be no mistake about what will happen should same-sex marriage be fully legalized in the United States. At that point, if bisexual activists haven’t already launched a serious campaign for legalized polyamory, they will go public. It took four years after the full legalization of gay marriage in the Netherlands for the first polyamory test case to emerge. With a far larger and more organized polyamory movement in America, it might not take even that long after the nationalization of gay marriage in the United States.

It’s easy to imagine that, in a world where gay marriage was common and fully accepted, a serious campaign to legalize polyamorous unions would succeed—especially a campaign spearheaded by an organized bisexual-rights movement. Yet win or lose, the culture of marriage will be battered for years by the debate. Just as we’re now continually reminded that not all married couples have children, we’ll someday be endlessly told that not all marriages are monogamous (nor all monogamists married). For a second time, the fuzziness and imperfection found in every real-world social institution will be contorted into a rationale for reforming marriage out of existence. No flash in the pan, Victor, Bianca, and Mirjam are destined to be heroes of “the next great social justice firestorm in America.”

Stanley Kurtz is a fellow at the Hudson Institute.

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Marriage and Faith: They Really Do Go Together (townhall.com, 060130)

by Chuck Colson ( bio | archive )

It’s becoming increasingly clear that strong families depend on churches, and churches depend on strong families.

That statement sounds obvious to some folks. But in fact, it challenges the conventional wisdom. For a long time, misinterpreted statistics made it seem that the connection between strong faith and strong families had weakened.

For example, my friend Ron Sider of Evangelicals for Social Action has said for years that evangelical Christian families were no different from secular families. According to Sider, “evangelicals and born-again Christians . . . divorce at the same rate as—or slightly more often—than other Americans.” Sider also has published data that seemed to show that Christians were having extramarital sex at the same rate as their secular neighbors.

Well, now researchers are discovering that Sider’s data is flawed. At a “Summit of Religious Leaders” that I attended last fall, the eminent authorities Dr. Brad Wilcox and Dr. Byron Johnson made a presentation showing that strong religious faith genuinely is connected with strong family life.

In collecting data, Wilcox and Johnson examined the religious practices of people who called themselves Christians—something previous studies had not always done. In particular, they checked rates of church attendance. Their findings were striking. Although church attendance is down, those who do attend, especially weekly, are less likely to divorce. Instead they are more likely to report that their marriages are happy. And regular church attenders reported being happier in general than those who did not attend regularly.

As Wilcox and Johnson pointed out in their presentation, “For much of our nation’s history, religious institutions have been the primary custodians of marriage. . . . Family, in turn, has oriented Americans to the religious life.” It’s no coincidence, then, that church attendance and marriage declined together as divorce and illegitimacy rates rise. And it’s no coincidence that regular church attendance still correlates with marital faithfulness and happiness.

When I talked with Wilcox and Johnson at the event, they told me that their analysis indicated that marital issues probably determined church attendance, not the other way around. But in one sense, it really does not matter which is the cause and which is the effect. Because we know that both are highly important and desirable social goals that help hold our society together, and we need to be promoting both: marriage and church attendance.

There are all kinds of important conclusions that can and should be drawn from this data. But what really caught my attention is how valuable this information is to pastors. They should encourage pro-marriage and pro-family attitudes within their congregation, provide marriage counseling, and make the effort to understand family issues and attitudes toward marriage. And of course, they should join in efforts to preserve the definition of marriage as a union of one man and one woman, because we also know that when gay “marriage” is recognized—as in Norway—traditional marriage declines. To these ends, I recommend that pastors and other Christian leaders study the writings of Jennifer Roback Morse, Stanley Kurtz, and other leading researchers and writers in this field.

As you can see, there are times when we need to restate the obvious. In a culture that has almost forgotten the meaning of marriage and the importance of faith, there is no better time than now.

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Dissolving Marriage: If everything is marriage, then nothing is. (National Review Online, 060203)

Stanley Kurtz

Canada, you don’t know the half of it. In mid-January, Canada was rocked by news that a Justice Department study had called for the decriminalization and regulation of polygamy. Actually, two government studies recommended decriminalizing polygamy. (Only one has been reported on.) And even that is only part of the story. Canadians, let me be brutally frank. You are being played for a bunch of fools by your legal-political elite. Your elites mumble a confusing jargon to your face to keep you from understanding what they really have in mind.

Language Exam

Let’s try a little test. Translate the following phrases into English:

1) Canada needs to move “beyond conjugality.”

2) Canada needs to “reconsider the continuing legal privileging of marriage and other conjugal relationships.”

3) Once gay marriage is legalized, Canada will be able to “consider whether the legal privileges and burdens now assigned to marriage and other conjugal relationships can be justified.”

4) Canada needs to question “whether conjugality is an appropriate marker for determining legal rights and obligations.”

[Answers: The English translation of #1,# 2, and #4 is: “Canada should abolish marriage.” The translation of #3 is: “Once we legalize gay marriage, we can move on to the task of abolishing marriage itself.”]

This argument was very publicly made to Canadians in 2001, when the Law Commission of Canada published its report, “Beyond Conjugality.” But nobody got it. Everyone noticed that a government commission had backed same-sex marriage. But few recognized, grasped, or could bring themselves to take seriously, the central thrust of Beyond Conjugality: that after the legalization of same-sex marriage, Canadian marriage itself ought to be abolished. (For more on this, see my article “Beyond Gay Marriage”)

Martha Bailey, Queens University law professor and chief author of the now infamous report advocating the decriminalization of polygamy, played an important organizing role in the Beyond Conjugality project (translation: the “Abolish Marriage” project). In 2004, Bailey published an article, “Regulation of Cohabitation and Marriage in Canada,” arguing that, after the legalization of same-sex marriage, Canadians would be able to turn their attention to the more urgent business of abolishing marriage itself. (That article is the source of items #2, #3, and #4 above.) So it is hardly surprising that Bailey has now called for the decriminalization of polygamy. What’s that you say? How does legalizing polygamous marriage advance the cause of abolishing marriage? Canadians, I’m going to have to spell it out for you in a way that Martha Bailey and her friends on the Law Commission of Canada will not.

The Plan

It’s like this. The way to abolish marriage, without seeming to abolish it, is to redefine the institution out of existence. If everything can be marriage, pretty soon nothing will be marriage. Legalize gay marriage, followed by multi-partner marriage, and pretty soon the whole idea of marriage will be meaningless. At that point, Canada can move to what Bailey and her friends really want: an infinitely flexible relationship system that validates any conceivable family arrangement, regardless of the number or gender of partners.

The Canadian public cannot bring itself to believe that the abolition of marriage is the real agenda of the country’s liberal legal-political elite. That is why everyone was surprised by Bailey’s polygamy report, even though the judicial elite’s intentions had been completely public for five years. (Granted, these intentions were telegraphed in a semi-incomprehensible intellectual gibberish, with the really scary stuff hidden in footnotes.)

If it were merely a matter of a few thousand so-called “Mormon fundamentalists,” legalized polygamy wouldn’t stand a chance in Canada. Even the addition of Canada’s rapidly growing Muslim immigrant population wouldn’t create a winning pro-polygamy coalition (although pressure from Canada’s Muslims does matter). It’s the many and powerful legal elites (including judges) — the ones who see marriage itself as an outdated and oppressive patriarchal institution — who make decriminalizing polygamy something to worry about.

What’s that you say? You still don’t understand how a bunch of liberal-feminist elites could even think about supporting an “oppressively patriarchal” institution like polygamy? I guess you still just don’t get it. Read Bailey’s report and you will see that she does not endorse traditional “patriarchal” polygamy. Bailey’s whole point is that Canada can decriminalize polygamy without endorsing what “fundamentalist Mormons” or Islamic immigrants actually do.

But why would Bailey favor that? Simple. Canada’s anti-polygamy laws stand in the way of Bailey’s true goal: the creation of a modern, secular, “non-patriarchal” relationship system that would allow for marriage-like unions in any combination of number or gender. That would mean the effective abolition of marriage. But to get to the postmodern version of multi-partner unions, Canada’s old-fashioned anti-polygamy laws have got to go.

The Coalition

Don’t you get it? Canada’s socially liberal legal elites are just using the gay marriage movement, fundamentalist Mormons, and Muslim immigrants to get what they’re truly after: the slow-motion abolition of marriage. (According to Bailey, even many same-sex marriage advocates actually want to “reform” marriage out of existence.) And radical as that goal may seem, Canada is a whole lot closer to abolishing marriage than you realize. Canada’s liberal courts have already knocked down most of the legal distinctions between marriage and unmarried cohabitation. Bailey’s notorious report highlights that fact. “The legal significance of marital status has declined substantially in Canada,” says Bailey, so why make a fuss about polygamy?

Martha Bailey isn’t shy about making slippery slope arguments (to encourage the slip, not to fight it). Canadians have been told, openly and persistently, by their own legal experts, that the slippery slope is real. Yet Canadians simply refused to believe it, until Bailey’s polygamy report came out.

Actually, Bailey’s report is only one of four separate polygamy studies sponsored by Canada’s Justice Department, two of which advocate decriminalization. The third study’s arguments apply to traditional “patriarchal” polygamy alone, and would carry little or no weight against modern “polyamorous” unions (of the kind I wrote about in “Here Come the Brides”). Only one of the four government-sponsored polygamy reports offered arguments that might invalidate modern forms of multi-partner unions. Yet this fourth study omits key arguments against multi-partner unions, and would clearly have a difficult time overcoming the case made by the two pro-decriminalization studies.

In other words, to the extent that it’s up to the sort of judges and legal experts favored by Canada’s long-reigning Liberal party, long-term prospects for some sort of legalized multi-partner unions in Canada are pretty decent. To be sure, Canada’s Conservatives now have a (tenuous) hold on power, and the Canadian public did not react well to the Bailey report. Yet Canada’s left-leaning legal-political elite is a patient lot. In 2003, a survey conducted by Canada’s Vanier Institute found that 20 percent of Canadians (25 percent of younger adults, and 33 percent of secularists) were willing to accept some form of polygamy, even if only 4 percent of Canadians personally approved of such unions. Given time, growing public tolerance, increased pressure from Muslim immigrants, incremental court decisions, continued growth in Canada’s already burgeoning polyamory movement, and the return of a Liberal government, Martha Bailey and friends may yet achieve their goal.

Tactical Multiculturalism

Bailey’s clever tactic is to appeal to Canada’s powerful multicultural sensibility by allying herself with Muslim immigrants. Even though Bailey’s proposal would decriminalize polygamy for Mormon patriarchs and postmodern polyamorists, she has almost nothing to say about those groups. Instead, Bailey focuses almost exclusively on the issue of Muslim immigration. Mark Steyn predicted this some time ago when he said that Canadian polygamy would “slip through under the guise of multiculturalism.”

Stressing “the multicultural nature of Canadian society,” Bailey claims that Canada has an urgent practical need for more Muslim immigrants. If Canada can just “expand the pool of applicants,” says Bailey, it just may win “the global competition for highly skilled immigrants.”

It’s an odd argument. For one thing, rates of polygamy in the Third World tend to be lower among the highly educated. And Bailey herself claims that the number of polygamists who would actually immigrate under a liberalized law would “presumably” be “very small.” So how can a minuscule number of polygamists boost Canada’s pool of “highly skilled immigrants?” Bailey resolves the contradiction by claiming that all Muslims would be attracted to a country that proved its commitment to multiculturalism by welcoming polygamy. Still, it’s tough not to suspect that Bailey is less interested in importing polygamous computer scientists from Africa than in using the Muslim community to achieve her ultimate goal of defining marriage out of existence.

Bailey is probably wrong on both counts. Instead of getting only a few polygamous immigrants but a lot of Muslim computer scientists, Bailey’s plan would likely result in only a few computer scientists and a lot of polygamists. That’s because Bailey would not only decriminalize polygamy, she would also allow all parties to intact polygamous marriages to immigrate to Canada. Big mistake.

After the Second World War, France expanded its labor force by allowing intact polygamous families to immigrate from Africa and the Middle East. By the 1990s, there were upwards of 200,000 polygamous family members living in France’s impoverished suburbs. Since 1993, France has been torn by conflict over these polygamous families, sometimes trying to break them up, sometimes looking the other way. Many believe that boys from large and poor polygamous families with little fatherly supervision helped cause the recent riots in France.

Canada’s Muslims seem interested in joining Bailey’s slide down the slippery slope. While denying that Muslims were about to push for polygamy, Canadian Islamic Congress president Mohamed Elmasry caused a stir in 2005 when he publicly defended polygamy as “a positive family force.” Sayd Mumtaz Ali, president of the Canadian Society of Muslims, was more forward when he said last year that if same-sex marriage were legalized in Canada, Muslim polygamists would be within their rights to push for legalization of their own way of life.

The Slope Slips

Of course, Ali is drawing a direct link between same-sex marriage and the push for legalized polygamy. Yet just last year, then Canadian Justice Minister Irwin Cotler famously said, “We don’t see any connection, I repeat, any connection between the issue of polygamy and the issue of same-sex marriage.” Calling such slippery-slope fears “alarmist,” Cotler authorized the four just-released polygamy studies, in part to put an end to the claim that polygamy would follow same-sex marriage.

Apparently Martha Bailey missed the memo. Not only does Bailey call for decriminalizing polygamy, she directly links her legal argument on polygamy to same-sex marriage. This happens when Bailey confronts the barrier that adultery law poses to her plan to decriminalize polygamy. Although adultery is not a criminal offense in Canada, it serves as a way of proving the key ground of divorce, “marital breakdown.” So if Canadian law recognizes adultery as a cause of marital breakdown, how can Canada accept polygamy? Easy, says Bailey. Why not just redefine adultery to mean, not sex with a third party, but sex with someone outside of a marriage of however many partners? To validate this reinterpretation of the meaning of adultery, Bailey points to the precedent of same-sex marriage, which forced a legal redefinition of adultery away from an opposite-sex dalliance. Hey, if we can redefine adultery for the sake of same-sex couples, why not redefine it to please polygamists?

Ultimate Goal

Bailey may not openly flog her ultimate goal of abolishing marriage in this report. Yet what Bailey’s up to is clear enough when she carefully describes a 1998 report by the British Columbia Law Institute in which a “significant minority” of members favored a “multiple domestic partnership” system detached from the patriarchal “baggage” of traditional polygamy. This is exactly what Bailey is hoping to establish. Yet she brackets the proposal by saying that at the moment there is “no demand” for such a system.

Not so, as this 2005 Macleans article on Canadian polyamory explains. According to Macleans, polyamory “seems increasingly common” in Canada. And as organized polyamory groups proliferate, there has already been discussion “about creating a system of legal contracts around issues such as child custody and family rights.”

Since polyamory is free of the “patriarchal baggage” attached to traditional polygamy, most of the arguments against multi-partner unions in the four just-released polygamy reports would not apply. Of course there are arguments against polyamory, it’s just that liberal law professors don’t know how to make them. In any case, Bailey is shrewd enough to see that, if she can only get Canada to set aside its laws against polygamy, the goal of supplementing (and eventually replacing) marriage with a modern domestic partnership system (allowing any combination of number or gender) would be achievable.

I’ve focused on Bailey, while touching only lightly on the three other polygamy reports. Yet taken together, these four extraordinary documents launch a serious public debate about polygamy. (I’ll have more to say about the other reports in time.) The four Canadian polygamy studies are a time-capsule from the future, a preview of the argument we’ll be having should same-sex marriage be fully established here in the United States. Once we’re there, we’ll be well on our way toward “removing conjugality as a marker for determining legal rights and obligations.” Translation? By now I think you get it.

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Phyllis Schlafly Was Right: The woman has earned a few “I Told You So”s. (National Review Online, 060208)

Kathryn Jean Lopez

Most of America’s girls typically don’t get to celebrate Phyllis Schlafly during “Women’s History Month,” but they should. Mrs. Schlafly not only had the right idea when she fought the Equal Rights Amendment during the 70s, but predictions she made back then are still accurate today.

Schlafly, of course, was head of the National Committee to Stop ERA. And stop it she did — the U.S. Constitution was not amended. She argued that a federal Equal Rights Amendment was not necessary, claiming that, “the fact is that women already enjoy every constitutional right that men enjoy and have enjoyed equal employment opportunity since 1964.”

Even though Congress overwhelmingly approved the ERA in 1972 — passing the House 354-to-23 and the Senate 84-to-8 — and the amendment would subsequently be ratified by more than 30 states (but not by the 38 its supporters needed), Schlafly fought the nonsensical Equal Rights Amendment to its death in 1982.

While explaining why the big push for the federal Equal Rights Amendment ultimately failed, in her book Feminist Fantasies Schlafly reprinted some of her old objections: “ERA would put ‘gay rights’ into the U.S. Constitution because the word in the amendment is ‘sex,’ not ‘women.’ Eminent authorities have stated that ERA would legalize the granting of marriage licenses to same-sex couples and generally implement the gay and lesbian agenda.”

And guess what? In the latest example of Schlafly’s prescience, on Jan. 20, 2006, a Maryland court struck down the state’s same-sex marriage ban based on the Old Line State’s Equal Rights Amendment. As Jessica Echard, who works with Schlafly at Eagle Forum (the public-policy nonprofit Schlafly heads) points out, “The Maryland ERA language is very similar to the federal ERA, which refers to no discrimination based on ‘sex’ not ‘women,’ Using the term ‘sex’ demands same-sex marriage because banning it would be denying rights based on sex.”

Agree or disagree with her politics, Phyllis Schlafly was right — the Hawaii supreme court was the first, in 1993, to rule that its state ERA mandated same-sex marriage.

At the time of the big ERA fight, of course, you might have thought she was nuts. “Hey, Phyllis, your sheet is showing,” a Doonesbury cartoon “joked.” Famously, during a debate at Illinois State University in 1973, the late feminist mother Betty Friedan angrily declared, “I consider you a traitor to your sex, an Aunt Tom.” Friedan said that she wanted to burn Schlafly at the stake. For Schlafly, Friedan’s fury came in handy. As Donald T. Critchlow recalls in Phyllis Schlafly and Grassroots Conservatism, Schlafly replied, “I’m glad you said that because it just shows the intemperate nature of proponents of the ERA.”

The Schlafly-was-right point about the ERA and marriage is worth noting — not just for historical-accuracy reasons but because the Left keeps trying to revive the old loser. As late as last year, the ERA was reintroduced in both the U.S. House of Representatives and in the Senate.

Sheila Cole, now a senior House staffer, wasn’t alive yet when Schlafly was first taking on the ERA, but worked with Schlafly as executive director of Eagle Forum in the late 1990s. Cole remembers, “One of the things I learned from watching Phyllis is that you always have to think like a chess player when dealing with the radical feminists.”

Nowadays, Eagle Forum is content that the Equal Rights Amendment is dead as a viable national movement, despite Ted Kennedy’s hopes (the ERA is his bill in the Senate) for its revival. Now Schlafly & Co. are more specifically concerned with protecting marriage — in part from the damage done by state ERAs. Meanwhile, when Women’s History Month comes around in March, how about a lesson starring a wise woman like Schlafly?

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Standing Out: The sharp increase of non-marital births in the Netherlands needs some explaining. (National Review Online, 060223)

Stanley Kurtz

Marriage in the Netherlands is in serious trouble. You don’t have to take my word for it, because even the Netherlands’ own statistical agency is making the same point. In this 2004 report “Trends in samenwonon en trouwen” (“Trends in cohabitation and marriage”), Jan Latten of the Dutch Central Bureau of Statistics paints a picture of radical institutional decline. And the most recent data from the Netherlands is fully consistent with this picture. At a minimum, this means that the “conservative case” for same-sex marriage has been refuted in the Dutch case. More than that, I argue, all signs point to same-sex marriage as a significant causal factor in Dutch marital decline.

Many causes have contributed to the institutional decline of marriage in the West since the 1960s, so it’s never easy to isolate a single one. What would a best-case scenario for isolating the causal effect of same-sex marriage look like? Well, the clearest case would be a Western country in which marital decline actually accelerated after the introduction of same-sex marriage, or its near equivalent. The accelerated rate of decline would be sharper than in comparably situated countries without gay marriage during the same period. Analysis of social and legal changes would show that alternative causes were unlikely to account for the decline. And a qualitative cultural analysis would point to specific reasons why the idea of same-sex marriage might lead to broader marital decline. The Dutch case is important because it meets all of these criteria.

Examining The Dutch Case

Until 1997, when the Netherlands legalized Registered Partnerships, the Dutch out-of-wedlock birthrate was notably low. After 1997, the rate of non-marital births began to accelerate twice as quickly as it had been. This accelerated increase in the out-of-wedlock birthrate has continued now for eight straight years, outstripping the pace of growth in any other Western European country during the same period. In “No Explanation,” I showed that the usual causes of marital decline could not account for what’s been happening in the Netherlands since 1997. And in “Going Dutch?” I showed why even Dutch supporters of same-sex marriage think of the change as undercutting rather than supporting the privileged status of marriage itself.

Defenders of same-sex marriage have two main replies to this causal case. First, they say that Dutch marriage has been declining since 1970, long before the introduction of Registered Partnerships or gay marriage. Second, gay marriage proponents say that other countries — particularly in Eastern Europe — have experienced recent increases in their out-of-wedlock birthrates comparable to those in Holland. Neither of these objections stands up to scrutiny.

Like marriage throughout the West, Dutch marriage has been in decline for forty years. Yet the sharp increase in the Dutch out-of-wedlock birthrate began in 1997, and this acceleration has to be explained. Yes, in Eastern Europe marriage has been collapsing at something like the rapid rate we see in the Netherlands. But as we’ll see, that can be explained by the economic crisis that followed the collapse of Communism. Nothing comparable to that deep social trauma occurred in the Netherlands. What’s striking is that so relatively prosperous a Western European country as the Netherlands should be experiencing the same crisis-like decline in marriage that we find in the economically struggling East.

The Decline

First let’s have a look at Dutch demographer Jan Latten’s 2004 portrait of Dutch marital decline. To all appearances, Latten is a social liberal who would happily defend recent changes in Dutch family life. That only makes Latten’s account of marital decline more powerful.

Here is Latten’s summary of the state of marriage in the Netherlands: “More cohabiting, more children born to unmarried couples, more family breakups among unmarried couples....The development of relationships and families is seen as a strictly private affair, while restrictions imposed from the outside — in the form of marriage, parenthood or divorce-could only serve to limit the freedom of individuals within these settings.” “The citizen,” says Latten, “has retreated from the public square.” He continues, “More and more children are born out of wedlock. Here too we find a shift away from formal frameworks....people view not just relationships but even parenthood as an exclusively personal affair.”

We already know that the Dutch out-of-wedlock birthrate began increasing more quickly in the mid-1990s. Latten’s more extensive data confirm this: “the number of informal two-parent families as a share of the total number of couples has almost tripled between 1995 and 2003. The number of formal two-parent families (married couples with children) on the other hand, has decreased.”

Supporters of same-sex marriage argue that these increases in the out-of-wedlock birthrate are less disturbing than they appear because many cohabiting parents eventually marry. Latten’s data tell a different story. Even the practice of marrying before the arrival of a second child is now in decline. Says Latten: “Remarkably, the number of second and further children born to unmarried parents in the period 1995-2003 has risen relatively sharply. This could be an indication of the fact that the norm of staying unmarried is spreading at an increasing pace. It means the informalisation of parenthood has reached a stage where the very concept of family life has become a subject of diffusion.”

The increase in unmarried parenthood for even second-born children (and later ones as well) is probably Latten’s most striking finding. But the numbers for first-born children are also arresting: “Today, 40 percent of all firstborn children are born out of wedlock. Marriage is fast losing its status as the essential sine qua non condition of parenthood.” (Remember, just a few years ago the Netherlands was touted for its unusually low out-of-wedlock birthrate.) Since unmarried parents break up at substantially higher rates than married parents, the end result of all this, says Latten, is more “informal” divorce among cohabiting parental couples.

Latten goes on to report on a survey of Dutch attitudes toward marriage. Whereas in 1992, 68 percent of Dutch men and women said that “marriage mattered to them,” that number had declined to 45 percent by 2003. And the key change in Dutch family life in the intervening period? Gay marriage, of course.

An Untenable Defense

Even before we knew of Latten’s powerful portrait of institutional decline, it was clear that events in Holland were not going well for Jonathan Rauch’s “conservative case” for same-sex marriage. Rauch’s notion that gay marriage will actually strengthen marriage for heterosexuals has gotten no support. In November of 2005, in a fascinating discussion at Cathy Young’s blog The Y Files, University of Minnesota professor of law and same-sex marriage advocate Dale Carpenter distanced himself from Rauch: “I’ve never thought that gay marriage would have much of an effect on marriage either way.” Yet Carpenter went on to float a hypothetical defense of Rauch: “Rauch could plausibly argue that without gay marriage, the decline in marriage [in the Netherlands] would be even worse than it has been....”

This is not a plausible defense. The conservative case for same-sex marriage is a totally unproven hypothesis. And now the country where formal same-sex marriage has been in place longer than anywhere else is experiencing faster marital decline than any other country in Western Europe. Supposing that things would have been even worse without gay marriage simply assumes what needs to be proven. In fact, the sharp decline of Dutch marriage strongly suggests that gay marriage weakens marriage, not the reverse. And as I showed at length in “Going Dutch?” the Dutch don’t think about same-sex marriage in the conservative way Rauch expects them to.

Jan Latten’s account bears this out. Latten could have treated same-sex marriage as a counter-trend to the process of family “informalisation.” After all, at least technically, gay marriage entails more family formalization, not less. Yet this is not how Latten treats the matter. Instead, Latten treats same-sex marriage as yet another instantiation of the principle that individuals have the right to define and shape their relationships however they want. As Latten treats it, same-sex marriage is one of a series of developments that move family life further into the private realm. In “Going Dutch?” I showed that Dutch supporters of same-sex marriage have long viewed the innovation in exactly this light.

So the notion that gay marriage will strengthen marriage for straight folks is confuted by both statistical and cultural data. It has received no support from the Dutch example, while much evidence contradicts it. Yet even if Carpenter was right and Dutch marriage would have been slightly weaker had same-sex marriage not been enacted, Dutch marriage has already deteriorated so far and so fast that any hypothetical strengthening effect of same-sex marriage must obviously be trivial.

By the way, Latten predicts that Dutch marriage will continue to decline. He expects that the number of unmarried parents will increase by what he calls “a stunning 119 percent” by 2050.

Dropping Fast

In 2004, the same year that Latten’s essay (in Dutch) on the decline of Dutch marriage came out, Joop Garssen, Latten’s colleague at the Dutch Central Bureau of Statistics, co-published a brief English language article in Canada’s National Post denying that Dutch marriage was in trouble, or that same-sex marriage had undermined it. Garssen was echoing the earlier arguments of his co-author, M.V. Lee Badgett, an economist at the University of Massachusetts, and research director of the Institute for Gay and Lesbian Strategic Studies.

Garssen and Badgett denied that there was a Dutch family-crisis. After all, they noted, Dutch children up to the age of four still live with their fathers at a rate higher than the European average. Yet this evades the central point. Unmarried parents break up at higher rates, and the number of cohabiting parents is growing with unusual rapidity in Holland. Dutch marriage has always been far more stable than marriage in, say, Scandinavia. The Dutch may still be a bit above the Western European average, but the point is that they are falling from their erstwhile family traditionalism with virtually unmatched rapidity.

Garssen and Badgett also claimed that most unmarried Dutch parents eventually tie the knot. Well, “most” may, but many do not. Since unmarried parents break up at far higher rates than married parents, many cohabiting parental couples split up before they can marry. And we’ve just seen Latten’s “remarkable” data on the sharp increase in the rate of second-and-further children born to unmarried parents. The norm of remaining unmarried, even after the first child, is “spreading at an increasing pace,” says Latten.

Garssen and Badgett grant that the Dutch out-of-wedlock births rose at a steeper pace from 1990 to 2003. (We now know that the rapid rise continued in 2004.) But they note that “a similar increase in non-marital births occurred in Ireland, Luxembourg, Hungary, and Lithuania, all countries that do not give same-sex couples partnership or marriage.” “We obviously can’t blame the rise in non-marital births in those countries on gay marriage, so why should we think that’s what happened in the Netherlands?”

This argument fails. Garssen himself, in his work with Arno Sprangers, explains the rapidly rising Irish out-of-wedlock birthrate by pointing to the severely restricted availability of birth control and abortion. The Netherlands, by contrast, has had near universal availability of both contraception and abortion for decades. By his own account then, Garssen should not expect the causes of the rising Irish out-of-wedlock birthrate to be duplicated in the Netherlands. And Luxembourg’s out-of-wedlock birthrate is moving up only about half as quickly as it is in the Netherlands.

There Was No “Anomie” In The Netherlands

That leaves only Hungary and Lithuania with increases in their out-of-wedlock birthrate comparable to the Netherlands. Yet there is a clear alternative explanation for rapidly rising non-marital birthrates in these and other Eastern European countries: the collapse of Communism. I treated this in “Dutch Debate,” but recent scholarly work allows us to see still more clearly why the Eastern European situation is so different from the Netherlands.

The collapse of Communism in the early 1990s plunged Eastern Europe and the former Soviet Union into a deeply disruptive economic and social situation for which there is simply no parallel in the Netherlands. Not only did Eastern Europe’s economies sink; government supports that had previously been available to married couples disappeared. Demographers agree that the radical economic and political insecurity in the post-Communist transition era forced families to delay marriage, which in turn led to the rapid rise of parental cohabitation. The social-economic crisis that followed the collapse of Communism led to a period of normless “anomie,” which was followed in the mid-1990s by an unusually rapid infusion of postmodern family norms from the West.

As summarized by prominent Eastern European demographer, Dimiter Philipov, in “Major trends affecting families in Central and Eastern Europe,” the rapid change in Eastern European family life, “...developed in a time of a historical societal change from a totalitarian to more democratic regimes. In this respect they are unique as compared to other parts of the world, and with western countries in particular.” It’s impossible to read Philipov’s essay (see especially pp. 1, 9-11, 22-23), or to read Margarete C. Kulik’s recent study of Hungarian cohabitation, without recognizing that the rise of parental cohabitation in the Eastern bloc cannot be equated with the situation in the Netherlands.

On the contrary, the Eastern European comparison only sharpens the causal question. How can we account for the fact that a stable and prosperous Western European country like The Netherlands is experiencing marital decline at a rate matched only by countries which have suffered severe social, political, and economic dislocation? Why would a country with a notably traditional attitude toward marriage and parenthood all of a sudden experience such a remarkable and long-lasting spike in its out-of-wedlock birthrate? The answer is that, once marriage stops being about binding mothers and fathers together for the sake of their children, the need to get married gradually disappears. That’s why I’ve argued that the soaring Dutch out-of-wedlock birthrate has everything to do with gay marriage.

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SOCIETY: Polygamy, Polyamory, and the Future of Marriage (Mohler, 060310)

“Think having three wives is a dream come true?” That is the question asked by HBO as it introduces its new series, “Big Love.” Set to begin March 12, the show is about a man named Bill Henrickson (played by Bill Paxton), who is described as “a modern-day Utah polygamist who lives in suburban Salt Lake City with his three wives, seven children, and a mounting avalanche of debt and demands.”

The executives at HBO obviously believe that the show will be a winner—and they are releasing it to great fanfare. The description of the series indicates something of how the show will combine elements of a soap opera with more serious drama. Of course, all this comes with a new twist, as HBO pledges to explore “the evolving institution of marriage through a typical atypical family.”

Is this really about marriage as an “evolving institution?” Consider how HBO describes the series’ plot development:

“The owner of a growing chain of home improvement stores, Bill struggles to balance the financial and emotional needs of Barb, Nicki and Margene (Jeanne Tripplehorn, Chloë Sevigny and Gennifer Goodwin), who live in separate, adjacent houses and take turns sharing their husband each night. While managing the household finances together and routinely sharing ‘family home nights,’ they try to keep simmering jealousies in check and their arrangement a secret—polygamy is illegal in Utah and banned by the mainstream Mormon Church. Adding to Bill’s woes are a series of crises affecting his parents . . . who live on a fundamentalist compound in rural Utah, and his ruthless father-in-law . . . the powerful head of the polygamist commune where his parents live.”

In one scene, Margene complains when “her night” finally arrives. “Three days can seem like such an eternity,” she laments. “Honey, I miss you, too,” he responds. “If I don’t say so, it’s ‘cause I don’t want Nicki and Barb to think I miss them any less.”

No one knows if “Big Love” will be a commercial success. Predicting the fickle tastes of the American public is a dubious endeavor. Still, the very fact that HBO has produced the series says a great deal about the cable network’s willingness to exploit virtually any opportunity for a story, and about the American public’s confusion over the institution of marriage.

In Utah, the series has unleashed considerable controversy, even before it hits the television screen. Responding to complaints from the Mormon church, the network added a disclaimer at the end of the program stating that the Latter Day Saints officially banned polygamy in 1890, a ban required in order for the state to be admitted into the Union. The statement also indicates that attorneys general in Utah and Arizona estimate that as many as 20,000 to 40,000 people in the United States currently engage in polygamous relationships. Others estimate that the number is far higher—perhaps as many as 100,000 or more.

That’s not all. Just last month, a judge in rural Utah was removed from the bench by the state’s Supreme Court when it was discovered that he was married to three women, with whom he had fathered thirty-two children. Even as he was removed from the bench, the judge, Walter Steed, indicated that he intended to continue his “plural marriage” arrangement. Currently, polygamy is considered a third-degree felony that can be punished by five years in prison and up to $5,000 in fines.

At the same time, there is a movement within the state to legalize polygamy. Some use the existence of wife abuse among polygamists as a rationale for legalizing the relationships.

Of course, in “Big Love,” HBO is attempting to present polygamy with a happy face. For some, the series may be viewed as comedy, others will see the program as a warning about the direction of the culture.

There is good reason to worry. The movement toward same-sex marriage will surely lead to the legalization of other forms of “marriage” as well. The logic is undeniable, as is increasingly recognized by legal scholars and public policy experts. In reality, if marriage can be redefined as anything other than the relationship between one man and one woman, it can mean virtually anything. As a matter of fact, a change in the understanding of gender related to marriage is, in a historical perspective, more significant than a change in number.

In Canada, the logic is already marching forward. After legalizing same-sex marriage, the Liberal Party (then leading the government) commissioned a $150,000 study in order to consider the question of polygamy. Those conducting the study came back with a startling recommendation—that Canada should repeal all laws banning polygamy.

“Why criminalize behavior?,” asked Martha Bailey, a professor of law who participated in the study. “We don’t criminalize adultery,” she added. She continued: “In light of the fact that we have a fairly permissive society . . . why are we singling out that particular form of behavior for criminalization?” The authors of the study also argue that Canada’s constitutional guarantee of religious freedom should protect polygamists who claim participation in plural marriages as a tenet of their faith.

In the Netherlands, polygamy has already gained much ground. In one highly publicized wedding, a man, Victor de Bruijn, married two women, Bianca and Mirgam. That union garnered a great deal of attention in Europe and in the United States, where advocates for same-sex marriage quickly rushed to insist that warnings against polygamy were merely scare tactics used by opponents of same-sex marriage.

Writing in The Weekly Standard, Stanley Kurtz suggests that plural marriage is “waiting in the wings.” Pointing to the De Bruijn wedding, Kurtz suggested a “heretofore hidden dimension” of the same-sex marriage reality. “The De Bruijn’s triple marriage is a bisexual marriage,” Kurtz explains. “And, increasingly, bisexuality is emerging as a reason why legalized gay marriage is likely to result in legalized group marriage. If every sexual orientation has a right to construct its own form of marriage, then more changes are surely due. For what gay marriage is to homosexuality, group marriage is to bisexuality. The De Bruijn trio is the tip-off to the fact that a connection between bisexuality and the drive for multipartner marriage has been developing for some time.”

Some homosexual activists also see the link between same-sex marriage and polygamy (or polyamory, multiple romantic and sexual relationships without legal marriage). Justin Michael, founder of the group “Polyamorous NYC,” says that efforts by homosexual activists to deny the link with polyamory is false and cowardly. “I’d encourage people to keep an open mind,” he asserted, “it wasn’t too long ago that gay relationships were completely ostracized. All movements have a tendency to build on the movements that have come before them.” He added: “It’s hypocritical for us as gays and lesbians to pretend we’re the only people who are treated differently because our relationships are not mainstream. Both communities are concerned with love, and forming lasting relationships, and with our own liberation.”

The Utah chapter of the ACLU argues that any personal relationship between consenting adults should be protected by the Constitution. Dani Eyer, executive director of the Utah ACLU told the homosexual newspaper, Southern Voice: “Criminal and civil laws prohibiting the advocacy or practice of plural marriage are constitutionally defective. Neither the polygamists nor the proponents of same-sex marriage are wild about the analogy, but we do see the two as similar concepts.”

Mathew Staver, a conservative attorney who heads the group Liberty Council agrees with the logic, even as he opposes both polygamy and same-sex marriage. “If you convert marriage to merely the placing of a license on consenting adults that are in a committed relationship, or who love each other, then there is no logical line that can be drawn between gay marriage and polygamy,” he insists. “Gay marriage clearly opens the door to polygamy.”

On Sunday, “Big Love” may draw a big audience. Of course, some will simply be drawn by the curiosity of it all. Yet, the existence of “Big Love” indicates that at least some Americans are willing to consider polygamy and polyamory as legitimate relationships for television dramas, if not yet for the culture at large.

The institution of marriage has survived for thousands of years, withstanding the tests of multiple wars, famines, plagues, and social upheavals. Now, marriage faces what might be its most severe question—whether it can survive the corrosive effects of America’s postmodern culture. We can be sure of this—the real drama about the subversion of marriage will not be accompanied by a laugh track.

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