Friday, July 3, 2015

How Should We Then Fight?

The great problem in American life is the progressive success in advancing the public sphere into the private sphere. The proper counterattack advances the private into the public. Church authority over marriage is the normal state of affairs in Western civilization, not the aberration. Only the last two centuries have seen the civil authority take over that responsibility. So let's just take it back. It would not even require passing any laws.

Private contracts with arbitration clauses are already perfectly legal. Why not designate your local church the arbiter over a marriage contract? An arbitration style contract would basically give the church arbitration board authority to decide whether a couple could get a divorce or not. The church would be allowed to do so on the basis of their own judgment, which could include whatever criteria you want, including religious criteria. The important thing is to insert a church board into the process of couples who might be considering a divorce. A church arbitration board might consist of a lawyer, an elder and a marriage counselor, all ideally volunteers and members of the church. Perhaps the church could put its most enthusiastic matchmaker on it as well to sell the idea to younger couples. And if you don't have one of "those", just put the singles group leader on the board. We all know why everyone goes to those singles groups. Might as well make it explicit.

Statistics show that the vast majority of church-going couples will never need an arbitration. But we should do this anyway as a political statement that God, not the government, defines marriage. It would also serve as an example to younger couples considering marriage, and young people in the church, so many of whom end up leaving. The problem with church relevance in American life is not going to be solved by skinny jeans and rock music. Making the church actually relevant, with real authority, just might make young people see that church is serious business rather than a social club.

When the CEO of Chick-Fil-A made a statement in support of traditional marriage, he instigated a nation-wide controversy. Mike Huckabee responded to the controversy by asking people to celebrate August 1st, 2012 "Chick-fil-A" appreciation day, and the public responded. Earlier this year the left began a massive social media campaign against an Indiana pizza store when the owner told a gay couple she would not provide a pizza for their wedding. The business began to suffer, but the owners started a crowdfunding campaign and raised almost $850,000 from sympathetic people all over the country. We turned potential defeats into victories. Conservatives have to learn how to do this more often, and in more important ways.

Imagine a response to the Supreme Court ruling just like that. Imagine local churches forming marriage arbitration boards, formulating a generic marriage contract that designated the arbitration board as the arbiter over marriage disputes, and Christian couples all across the country coming before the church to put God in authority over their marriage instead of the government. Obviously I don't have the public profile to start something like this, but somebody like Mike Huckabee or Rick Santorum does. How much bigger of a statement would that make then buying a bunch of chicken sandwiches? You believe God is the authority over marriage? Even the demons believe that. How about putting your marriage where your mouth is?

I was too harsh with Texas Governor Greg Abbott and Attorney General Ken Paxton yesterday. I did not mean to attack them. I think they are doing what they can, but we must all recognize that they have to present the best case possible. What they are trying to do is use religious liberty as a protection for county clerks, judges and justices of the peace who don't want to issue marriage licenses to gay couples. The theory goes that they don't have to if they have a religious objection. It's worth a shot I suppose. But lawyers don't publicly state problems with their own case, and these two lawyers and the others working on this must know that this is not going to win in court. The scenario that Abbott and Paxton are laying out here is encouraging low level public officials to refuse to issue a license if it conflicts with their religious beliefs. The inevitable result will be a court case where the ACLU or somebody else sues a county clerk who has done so. Abbott and Paxton are encouraging somebody to put themselves in the line of fire that they must know is a near certain defeat. But hey, maybe it will accomplish something. Just putting somebody up for a firing squad might turn public attention against the ones doing the firing. Even supposing they do win, and a few clerks here and there refuse to issue marriage licenses, gay couples can just go to the next clerk over. They can even go to the next county over, in fact, even the next state over, and get exactly what they want since the Court's ruling requires states to recognize marriages performed in other states. There are better things we can be doing.

Texas State Representative Matt Rinaldi has started a movement to ask governor Abbott to call a special session of the state legislature to deal with the marriage issue. He lists four priorities:

1) eliminate the requirement for individuals to obtain a government marriage license prior to undergoing a religious ceremony;

(2) remove the authority for government officials to issue marriage licenses or conduct marriage ceremonies;

(3) pass an expanded religious liberty protection bill that protects not only pastors, but private actors, as well; and

(4) address changes to our existing legal framework which would be necessitated by such changes.

The state of Alabama did something similar recently, but it was much more muted. From what I have read, all they did was change the word "shall" to "may" in reference to issuing marriage licenses, and then a lot of local clerks have decided not to issue licenses on their own initiative. There has been a lot of talk recently about ending marriage licensing by the states, especially among libertarians who have reasons other than protecting marriage for wanting to do that. I think it would be a positive step, but let's take a step back for a second and look at what that would actually accomplish and what it would not.

Marriage was not suddenly recognized in the law when governments began issuing marriage licenses. Marriage presents unique legal issues within our judicial system, and simply ending marriage licensing doesn't eliminate those legal issues. Parents still need special parental rights, and will still get them. Divorce, child custody, alimony, child support, hospital visitation rights and the myriad other laws governing marriage are not going anywhere because couples don't get a marriage license. And perhaps most importantly for our current purpose, simply ending marriage licensing doesn't end the state's recognition of gay marriage in the law. Ending marriage licensing is something libertarians want anyway. They would have supported it with or without the Supreme Court ruling. There's an element of political opportunism going on here. I'm not saying I'm against it, I'm just saying it's not exactly predicated on protecting marriage. It doesn't go far enough.

If the Supreme Court's rulings on Obamacare have taught conservatives anything, it's the importance of the meaning of words. The Supreme Court upheld the individual mandate by interpreting the word "penalty" as "tax". More recently it upheld subsidies in the federal exchanges against the plain meaning of the text. Defending the meaning of words is important to the conservative cause. C.S. Lewis wrote that " have killed a word you have also...blotted from the human mind the thing that word originally stood for. Men do not long continue to think what they have forgotten how to say." The biggest cultural impact of the gay marriage ruling has gone largely unnoticed in the aftermath. That is the meaning of the word "marriage". If we do nothing, in fact, even if we do all the things I have already outlined here, we will still face the future problem of being unable to speak about marriage in a way that we understand it. We have to do something about this, and we have to do it before we lose the political power to move anything on this issue, which will happen if the polls are any indication. This is part of the reason why I was so harsh yesterday. Refusing to admit defeat means failing to take steps like what I am proposing. If we believe that we can still win on this issue, there is no reason to do this. But if we are going to lose, or have already lost, it becomes necessary to protect what we still have. Military history is full of examples where armies overextended themselves and tried to defend too much. The price of a strategy to defend the indefensible is the failure to defend the territory that is defensible. When you are overrun, you have to make choices about what to leave behind and what to defend. Marriage is just a word, but words are important in the fight that we have ahead of us. We can no longer defend marriage in the law, but we can defend it's meaning in the language.

I propose we strike the word "marriage" from our civil and criminal law entirely. Go through the entire law line by line and remove the word "marriage" completely. Replace it with "civil union". This can be done in such a way as to have zero legal effect, and it will serve the purpose of separating the institution bent and twisted by the government from the true meaning of marriage which can then be defended in the church. Do I want civil unions? No, but we no longer have a choice. We must scorch the earth we leave behind. If we don't do this, the very term "marriage" will be irreversibly changed to include homosexual relationships. Future generations will grow up understanding marriage in terms foreign to us. It will become impossible to even explain to younger generations that when the pastor talks about marriage or they read about marriage in the Bible, that this does not mean homosexual marriage. Words are important. If we really want to protect marriage, we need to take steps to protect the meaning of the word from the deviancy of the judiciary. There should not be a legal problem doing this, because it does not involve any sort of discrimination against homosexual couples. Under the state law, everyone will have a civil union. The church sanctioned marriage I proposed earlier is voluntary and overseen by the church, where religious liberty can be maintained legally. We can call this "marriage", call the government version "civil union" and maintain the meaning of biblical marriage. This requires admitting defeat in the law, but we have already lost. If we don't do this, we will lose even more. We will lose the language. Arguably, that is more important than the law in the future.

Now that's whack.