When a friend and I recently shared a taxi, our driver was not shy in expressing her support for “marriage equality”. It is none of the government’s business, she said, what people do in the privacy of their own bedrooms. For her, marriage equality simply meant letting consenting adults do as they please. My friend gently pointed out that the government already does just that.
There is no law against a same-sex couple celebrating their love physically, or even exchanging vows of fidelity and having a witness declare them “married”. As Greens leader Richard di Natale has rightly emphasized, “marriage equality” is really a matter of recognition. Di Natale is on record as saying that it is the right of every couple to have their love “recognised by each and every one of us”. Marriage equality is about affirmation.
But why should the government officially recognize and affirm a couple’s love? Was our taxi driver not right that love and lovemaking are not the government’s business? More generally, is it not true that affirming (or refusing to affirm) the goodness or worthiness of people’s beliefs, feelings and choices is not the government’s business?
An old-fashioned liberal would say yes. On the classical liberal view of politics, all of us should be free to think and act as we see fit, provided we do others no harm. In John Stuart Mill’s ringing slogan, “over himself, over his own body and mind, the individual is sovereign”. But the right to choose how we live is not the same as the right to have others validate our choices. It is no concern of government, says the classical liberal, to tell people how to live their lives or to promote any vision of the good.
Instead of calling for the legal redefinition of marriage, a consistent liberal would deny that it is a government’s task to define marriage at all! Competing definitions of marriage fundamentally reflect conflicting value-judgements. Marriage traditionalists see a profound moral significance in the connection between sex and procreation, while supporters of same-sex “marriage” think this connection morally irrelevant. For the classical liberal, however, a government should not attempt to adjudicate disputes such as this. The liberal state should be “value-neutral”.
If, as Catholics, we oppose the legal recognition of same-sex “marriage”, while nonetheless defending the legal recognition of (opposite-sex) marriage, we are asking our legislators not to be “value-neutral”. We are asking for legal affirmation of the unique goodness of exclusive, lifelong sexual relationships open to procreation. Our campaign is a fundamentally illiberal one. Our opponents would say that we are seeking to “impose our values” on those of our fellow Australians who do not share them – and, in one sense, they would be quite right.
Should we be troubled by this?
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One of the episodes in 20th-century history that helped pave the way for today’s battle over the meaning of marriage was the British government’s (partial) decriminalisation of homosexual practice in 1967. Harold Wilson’s administration was following the recommendation of the 1957 Wolfenden Report, which had urged decriminalisation precisely in the name of governmental “value neutrality”. Homosexual practice between consenting adults, the Report argued, was a private matter, of no concern to the state. Immoral it might be, but the state has no business enforcing morality.
Lord Patrick Devlin, an eminent British jurist, initially agreed wholeheartedly with the Report’s argument. However, he later changed his mind. Though not objecting to the decriminalisation of homosexual acts, he came to think that the Report’s justification for decriminalisation was deeply flawed. He rejected the notion that any conduct could be a purely “private matter”, of no concern to the state. A shared moral code, he argued, is part of what makes a political society.
Without such a code, a political society would cease to exist except in name. Shared interests or shared fears of external threats might be a sufficient basis for cooperation, but not for true community. Furthermore, a political society has the right to enforce its moral code. Indeed, since it depends on this shared code for its very existence, it has a duty to enforce it! This is not to say that it should forcibly punish each and every breach of its moral code. Many immoral acts (lies, for instance) are best dealt with without recourse to the law.
Even serious breaches of a society’s moral code need not be criminal offences. Devlin notes that, while no respectable 19th-century Englishman would have condoned incest, there was no law against it until the 20th century. Nonetheless, tolerance of vice should be a matter of prudence, not of principle. In principle, even “private” vice is at least a potential threat to a society’s moral foundations and thus of potential concern to the state. In Devlin’s words, “it is no more possible to define a sphere of private morality than it is to define one of private subversive activity”.
This conclusion is jarringly offensive to our contemporary sensibilities. Yet I, for one, find it hard to fault Devlin’s reasoning. If he was right, then the liberal dream of a “value neutral” state is virtually a contradiction in terms. A political society cannot exist without some vision of the good – a vision that it is willing, in principle, to enforce.
The contemporary campaign for same-sex marriage itself illustrates this. Its point is to enshrine in law a specific view of the meaning of marriage. This understanding of marriage is part and parcel of a popular, anti-Christian sexual ethic. If the Australian government recognises same-sex marriage, it will in effect be telling marriage traditionalists that their understanding of marriage, and of the meaning of human sexuality, is false. It will be endorsing (if not yet enforcing) an anti-Christian moral code.
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The classical liberal view of politics is a fantasy. Political society cannot exist without a shared moral code enshrined to some extent in law. Yet the liberal fantasy exercises a powerful grip on contemporary politics and all too often clouds our thinking. Despite his acknowledgement that “marriage equality” is about recognition and affirmation, Senator di Natale has expressed surprise that the Liberal Party – “the party of liberalism, the party that talks about respect for the individual, the party of small government, the party of individual responsibility” – should oppose the legal recognition of same-sex marriage. He apparently does not realise that no “party of liberalism” would support legislation recognizing and affirming people’s loves and choices. He invokes classical liberal principles even as he pursues a radically illiberal political agenda.
We must be honest with ourselves. As Aristotle says, we are political animals. We have a natural need to live in a political community, not just in an economy. A political community means a shared code and a shared creed. For better or worse, any genuine political community will to a greater or lesser extent impose its code and creed on those of its members who hold dissenting views. Marriage traditionalists, Catholic or otherwise, should not feel any compunction about seeking to “impose their values” on others by campaigning to have their understanding of marriage enshrined in law.
For a Catholic, of course, politics is never the main game. The Church’s mission is to save souls, not to win political battles. But healthy souls flourish best in healthy polities. Moreover, we need to remember that the substantial religious liberty people of faith enjoy in countries like ours is itself one of the fruits of liberalism. If the liberal vision of politics is at bottom incoherent, this liberty is necessarily precarious.
The recent, well-publicised encroachments on religious liberty in the US after Obergefell are no accident. A basically secular nation has no principled, coherent reason to grant people of faith wide-ranging religious liberties. We need to engage in politics for our own sake, as well as for the common good. And while we must do so with humility and charity, we would do well to bear in mind G. K. Chesterton’s sober observation that “life is a fight, and not a conversation”.