Some thoughts provoked by the imposition of “gay marriage” on the people of New Jersey by the state supreme court, on the grounds that no substantial government purpose is served by limiting marriage to man and woman:
- The move treats marriage as a creation of positive law that can be freely defined to be whatever the lawmaker thinks will advance his purposes. It does not treat it as a natural relationship with concrete details specified by a combination of natural function and particular cultural ideals and circumstances. The court thus presumes that marriage doesn’t precede the legal system, it’s created by it.
- That view doesn’t account at all for the position marriage has actually held within the legal system, let alone within human life generally. For example, marriage is said to be a fundamental right, one that the state cannot infringe upon. How can that be so when its existence and nature is a pure matter of positive law subject only to general requirements such as equality?
- If even marriage is no more than a creation of positive law then it seems the same would be true of all social institutions. The court seems to believe that social order is 100% the creation of the legal system. How can that possibly be so? Does the legal system create itself? Isn’t a view that makes the legal system and therefore the state the source of all social order totalitarian? Am I the only one who finds this alarming?
- The decision substantially completes the trend toward the legal abolition of marriage. When everything is marriage nothing is marriage. If the relationship has no natural definition or function, how can anyone say what rights and obligations should go along with it? Isn’t it all arbitrary? Why should anyone care whether the parties live up to an arbitrary self-defined relationship, and why give it any sort of legal recognition?
- The court voted 4-3 to let the New Jersey legislature decide whether to call same sex arrangements “marriage” or something else. Commentators apparently think that concession should defuse the issue for the upcoming election, since people are edgy about gay “marriage” but mostly think it’s OK as long as it’s called something else. I suppose the point is that the people, who know there’s something wrong with “gay marriage” but can’t say what, are only marginally better off than their rulers, who think it’s a basic moral necessary.