The California gay marriage decision has received plenty of commentary, and the world hardly needs another. One particularly striking implication, noted by both E.J. Dionne and Joe Knippenberg, is that the Court's decision renders untenable the "moderate" stance of approving domestic partnerships but disallowing marriage. Courts, as usual, circumvent the messy imperfection of politics to force all-or-nothing outcomes, thereby increasing polarization throughout the electorate. And, ironically enough, as Bill Kristol noted today, the decision will probably hurt the Obama candidacy.
However, few have noticed that the Court's logic really contradicts the basic grounds for marriage. My particular concern is the basis of the California State Supreme Court decision:
"The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage."
To my mind, what's most striking about the Court's decision is the language of the inviolability of "individual liberty and personal autonomy." These are the legal and Constitutional grounds on which a decision about the basis of marriage are being grounded. On the basis of such grounds, can there really be marriage at all, at least in a form that is worthy of defense? Aren't we really talking about an advantaged tax and property arrangement, one that can and should be altered at the will and inclination of the individual's "liberty and autonomy"? It is really nothing other than the contractual partnership defended in Locke's Second Treatise, sans the children (or at least conceived by the couple in question). And doesn't it permit any possible form of coupling, including ones not limited to couples (e.g., polygamy, etc., between consenting adults?)
Consider some of Wendell Berry's writings on marriage - certainly among the most articulate on the matter - and compare them to the language of the California Supreme Court:
"Lovers must not, like usurers, live for themselves alone. They must finally turn from their gaze at one another and back to the community. If they had only themselves to consider, lovers would not need to marry, but they must think of others and other things. They say their vows to the community as much as to one another, and the community gathers around them to hear and to wish them well, on their own behalf and on its own. It gathers around them because it understands how necessary, how joyful, and how fearful this joining is. These lovers, pledging themselves "until death," are giving themselves away, and they are joined by this as no law or contract could ever join them. Lovers, then, "die" into their union with one another as a soul "dies" into its union with God. And so here, at the very heart of community life, we find not something to sell as in the public market but this momentous giving. If the community cannot protect this giving, it can protect nothing - and our time is proving this is so." ("Sex, Economy, Freedom and Community," pp. 137-8).
Marriage is the sacramental form of self-sacrifice and self-denial upon which all societies must ultimately be based. No society can continue into the future without the willingness and ability of adults to govern their own personal and selfish inclinations for the sake of a future generation. It is the fertile training ground in which such sacrifice and "self-dying" is practiced and always imperfectly achieved - and, one hopes, passed on to the young. It is the oath a current generation makes to future generations.
Once marriage is defended on the grounds of "individual liberty and autonomy," it may as well not be defended at all. In this respect, the victory of proponents of gay marriage is a further expansion of individualism (and, of course, the real prize is "recognition," the Hegelian marker of modern autonomy - it's not enough to be free, one has to receive positive, official confirmation of one's freedom and worth). With the advance of the logic of modern liberalism and free-market ideology, marriage has been increasingly justified by many heterosexuals in just the manner that gay marriage is being legally advanced. Many would seem to want to close the barn door after the horse has escaped, or at least a good way out of the door.
Would gay marriage proponents be willing to step up in defense of the elimination or serious truncation of no-fault divorce provisions, and in support of "covenant marriage" counseling, efforts to reduce sex before marriage, the legal discouragement of divorce, and more generally "the dying of the self" for the other against the grain of our time that valorizes "individual freedom and autonomy?" For that matter, would a vast number of heterosexuals? Until then, we are debating at the edges and missing the heart of the matter.