What James Madison Can Teach Us on the Gay Marriage Controversy: Privatize Marriage just like Religion.

Responding to a proposed compromise on the national marriage debate by Jonathan Rauch and David Blankenhorn, Ryan T. Anderson and Sherif Girgis of the socially conservative Witherspoon Institute suggest a different compromise:

[U]nions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.

Anderson and Gergis, following their mentor Robert P. George of Princeton University, object when government recognizes "immorality" to be publicly or politically legitimate in any sense.

David Link of Independent Gay Forum reacts:

With apologies to the traditionalists, the days when a majority of Americans simply closed their eyes to the loving – and sexual – relationships of same-sex couples are coming to an end.

There is no need to go so far out of our way to invent an entirely new category of relationship whose only point seems to be to grant same-sex couples some kind of rights while not acknowledging them in law as same-sex couples.

If the law must choose whether to "recognize" same sex relationships institutionally, no compromise will satisfy either side. However, there is a third way compromise: Government should not be in the business of "recognizing" which sexual relationships qualify as "marriage," or something like thereof.

The libertarian solution I endorse is to let everyone have that two person civil union that even sisters can get and abolish "marriage" as public legal institution. Leave the question of "marriage" entirely to private entities like churches. In short get government out of the marriage game.

The dispute over religion during America's Founding era is instructive. Back then almost everyone agreed that "religion" (broadly defined) was good for republican government. Today most people agree that mutually supportive relationships are good for society. As John Donne said, "No man is an Island."

And, back then, a consensus held that "Christianity" (again broadly defined) was the "best religion." And today, most agree that "marriage" is the best kind of mutually supportive relationship that benefits married individuals and society as a whole.

However, during the Founding era, the population disputed how "real Christianity" was defined (as we do today). And if government were to be in the business of supporting "the Christian religion," which in turn provided republican government with "indispensable support," it would have to first define "Christianity."

James Madison, who remonstrated against government support for "Christianity generally," understood the best solution when it came to intractable disputes was to get government out of the game and rather have it act as a neutral referee among competing "factions."

Madison believed if government had the authority to "take cognizance of" and hence define "religion" or "Christianity," someone's unalienable rights ultimately would be violated. As Madison wrote in the Memorial and Remonstrance:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?

Madison's solution was to privitize religion:

We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

Now substitute "marriage" for "religion":

We maintain therefore that in matters of [marriage], no mans right is abridged by the institution of Civil Society and that [marriage] is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

Further "abolishing" the public recognition of religion (or marriage) does not equate with "abolishing religion" (or marriage). As Madison put it:

[F]or every page of [the Chrisitan religion] disavows a dependence on the powers of this world....[F]or it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence....[F]or a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. [Bold mine.]

What I bolded is important because religious conservatives often argue that marriage is "pre-political," not an invention of human society, but something whose real definition human institutions can do nothing to change. Madison says the same thing about the Christian religion. But Madison's solution was not for government to recognize the "right" definition of "religion" only, but get government out of the religion business altogether and leave the disputed understanding thereof entirely to churches, private institutions and consciences.

As to the disputed definition "Christianity," whatever their sectarian differences, almost all of the recognized Churches (except the Quakers) adhered to an orthodox Trinitarian creed. There was, however, a minority of extremely bright, politically powerful theological unitarians (of which Madison likely was one) who thought of themselves as "Christians." But to the orthodox, terming unitarians "Christians" was like calling a dog's tail a fifth leg. And again, we see a parallel argument from opponents of same sex marriage: Terming a relationship between two men or two women a "marriage" is like calling a dog's tail a fifth leg.

In private notes he prepared for the Memorial and Remonstrance, Madison asked "What is Xnty?... Is it Trinitarianism, Arianism, Socinianism ? Is it salvation by faith or works also, by free grace or by will, &c., &c." Again Arianism and Socinianism were popular forms of the unitarian heresy believed in by many notable Founders.

Madison further asks, "What sense the true one for if some doctrines be essential to Xnty those who reject these, whatever name they take are no Xn Society?" Again notice the parallel to same sex marriage. Social conservatives argue same sex couples may call themselves "married" and certain governments may even recognize them as such; but they are not, in reality, "married."

Finally Madison stated if government takes cognizance of "religion" or "Christianity," "Courts of law" would have judge "what is orthodoxy, what heresy" and the end result would "Dishonor[] Christianity." And again to make the parallel to the same sex marriage dispute, courts of law HAVE judged whether same sex marriage qualifies as such and many believe this has "dishonored marriage."

Madison's ideal on church and state ultimately was adopted in Virginia with the passage of Thomas Jefferson's Statute on Religious Freedom. There was however, another ideal on religion and government put forth by John Adams (himself a unitarian) in Massachusetts. Government could take cognizance of and "mildly establish" "Christianity," but must still recognize religious liberty. Eventually, just as Madison predicted, a court -- the Massachusetts Supreme Court -- had to determine whether a Unitarian Church could get state establishment aid. And that Court, comprised of a number of Unitarian judges, held it could, that "unitarianism" was "Christianity," and hence eligible for government establishment aid. See the Dedham decision. To the orthodox, again, this was like terming a dog's tail a fifth leg. And THAT was what finally ended religious establishments in America, Massachusetts the last to do so in 1833.

If enough courts recognize same sex marriage, I wonder whether today's social conservatives will come to support abolishing civil marriage simply to prevent the state from recognizing same sex unions as "marriage." This compromise worked with religion, perhaps it can also work with marriage.