Can the State 'Redefine' Social Institutions?
by Jonathan Chaplin
As the argument over gay marriage begins to generate heat if not yet light it is evident that a fundamental question in the debate is going to be whether it is within the moral authority of the state to “redefine” something like marriage at all. While so far the question has been posed mainly by Christian voices it is one that could, and should, arise from anyone concerned about the potential for the state to act in ways that undermine a flourishing social order. Opponents of gay marriage are advancing the claim that, as John Milbank sums it up, “there is something monstrous about the state even claiming to have the power by law to change the definition of a natural and cultural reality which has historically preceded the existence of the state itself”.
But this view already seems to be falling on entirely deaf ears both in government and beyond. Can any sense be made of it? What exactly would it mean for the state to “redefine” a social institution? Isn’t it the case that the state is in the business of redefining social institutions all the time? Won’t new banking regulations, for example, redefine what counts as a bank, and isn’t that exactly what the public good currently demands? Why then shouldn’t it set about redefining marriage?
The language of “redefinition”, however, risks eliding a distinction of fundamental importance to a free society. The state may certainly recognise, protect, support or regulate institutions like banks, trades unions or families but it does not create them from nothing. They arise from the independent initiatives of society itself, which means the free actions of many individuals and associations pursuing basic human purposes not originating with the state. It is true that the state might, pursuant to its own distinctive purposes, at times bring existing institutions (industries, for example) into public ownership or establish new instances of existing institutions, as in the case of public hospitals. But to assert that the state “creates” or “defines” industry or health care or education or family is to put the cart entirely before the horse. There are some institutions – families, for example – which long pre-date the emergence of the state; some, like religious or philanthropic associations, which will always arise irrespective of state action; and some, like trades unions or political parties, which under no circumstances would we want the state either to control or create.
If the public debate about gay marriage is to achieve any clarity at all – and currently there are few signs that it will do much better than the lamentable Canadian one in the early 2000s – we must first resolve whether we think marriage is an institution arising out of the independent energies of society, or, rather, is simply a creature of the state which therefore could redesign it at will. If the question is put that way, rather than in the diversionary and obfuscating language of “discrimination”, I would expect most British people to think it the former.
If so, the next question would be what, if anything, about marriage reflects something “given” in human nature and what about it may be “chosen” by autonomous individuals. This concern, too, is one that is likely to be prominent for many religious believers, but one needn’t be a religious believer to recognise that not everything about human social life is self-created.
Many seem to be uncritically supposing that gay marriage is the inescapable logical consequence of our society’s (or at least our state’s) embrace of equal rights as the overriding norm governing all human relationships. But this betrays the problematic assumption that marriage can be whatever consenting equal individuals decide it shall be, irrespective of the remarkable endurance of its traditional form or of the wider social goods to which it has long been thought to make a unique contribution. Such an assumption casually tosses aside millennia of settled convictions across the great majority of cultures that one of the things given in the institution called “marriage” is, as Milbank cogently argues, the complementarity of male and female genders and the distinctive resources such a differentiation brings to the procreation and nurture of children and the establishment of wider inter-familial social bonds. It may be that such a conviction would not survive the rigours of serious democratic debate in our secularized and morally plural society – after all, sometimes societies conclude that it is right to cast aside long-held traditional convictions – but we won’t know that unless the proposition is actually put with seriousness.
The effect of expanding the legal category of marriage to include homosexual partnerships would not, of course, be to abolish the social reality of heterosexual marriage, as some of the more alarmist Christian voices have implied. Traditional marriage will continue apace as long as heterosexual couples want to enter into lifelong unions, whether or not these are recognised either by state or church. But, as Andrew Goddard has pointed out, since the government’s proposal is not to introduce a new legal category called “same-sex marriage” but to create an omnibus category embracing both hetero- and homosexual relationships, the result will be that there would be no public legal status at all for a marital relationship premised upon gender complementarity. That would amount to a radical act of social engineering with far-reaching legal and social consequences, to which the government appears to have given no thought at all.
The fundamental question of whether marriage is a creature of society or of the state must be confronted before the issue of what specific changes to the legal recognition and regulation of marriage might or might not be warranted at this moment in time, can be sensibly addressed. The fact that the government’s consultation only concerns the “how” of gay marriage and not the “whether” reveals not only a reckless indifference to the insights of history and social ecology but, given that the proposal was entirely unannounced before the election, also a complete disregard for democratic process.
It may not be too late to persuade the government to confront momentous questions it seems incapable even of noticing. On that score, we wait with interest to see whether those who have roundly attacked the government’s decision to “redefine” the NHS on the basis of no electoral mandate whatsoever will lend their support to those making precisely the same democratic argument against the manner of its attempt to “redefine” marriage.
Dr Jonathan Chaplin is Director of the Kirby Laing Institute for Christian Ethics and a member of the Cambridge University Divinity Faculty. He is co-editor of God and Government (SPCK 2009) and co-editor of God and Global Order (Baylor, 2012)