Talking about Marriage and our Culture

I meant to post this several months ago, but in the light of the California Supreme Court's redefinition of "marriage" this week and the conversation it is eliciting in some segments of the Church, it seemed more urgent to transcribe this portion of an interview with John Witte, Jr., from a recent edition of Mars Hill Audio. In the interview, which draws upon his book God's Joust, God's Justice: Law and Religion in the Western Tradition (Eerdmans, 2006), Prof. Witte addresses why law needs to be understood in the context of its relation with other practices and disciplines, including religion.

Ken Meyers' last question in the interview is:

"One of the areas in which there's a lot of contention about morality and law right now are marriage laws. I know you've spent a lot of time studying marriage and family -- history of marriage and family. It seems that in some circles there's a reluctance to assert that our laws concerning family, what constitutes a family, what constitutes a marriage, should be based in some moral vision, that that itself is seen as a transgression of the Social Contract for a kind of pluralism. You think that it’s entirely possible to make moral arguments in the construction of laws governing family."

Witte responds:

"I think those are absolutely imperative to offer as alternatives in the discourse.

"It’s important to remember that the architects of our understanding of a social and government Contract (people like John Locke or Jean Jacques Rousseau and some of their American followers and contemporaries) had as their First Contract -- before the contract of society and the contract of government -- the First Contract was the Contract of Marriage. In Locke’s First and Second Treatise that’s presupposed. In Jean Jacques Rousseau’s work that’s presupposed. James Madison and Thomas Jefferson both presupposed that as well.

"The Marital Contract is the First Contract. It's the First School of Justice. It's the first chrysalis in which nurture, education, and habits of citizenship are encouraged in the population. It's only on the strength of that contract, from atavistic individuals in nature to this first institution, that we can then begin to build a notion of a Social Contract and, beyond that, a Government Contract.

"And that's an ancient insight that goes all the way back to Aristotle, that goes back to his "Politics" in Nicomachean Ethics, where he said the first institution of the polis is the family.

"So if that is the presupposition in Western understandings of how we organize our polities, it seems to me that it is a non-starter for us to be debating the essentials of marital and family norms, and procedures and policies, and exclude from that discourse all of the rich cultural, philosophical, and theological traditions that have helped to cultivate our understanding of marriage and family, and how it works within the broader polity.

"And religious communities that bracket their theological discourse, that choose to forego a deep reflection on the goods and the goals of what marriage and family life are all about in an attempt to be politically correct, or an attempt to avoid a political fence -- or in an attempt to First Amendment-ize themselves per the caricature of the separation of Church and State -- in my view, both are engaging in theological bracketing and trimming that's unnecessary. What they're ultimately engaging in [is] an omission from the discourse that's going to harm the polity in the long term.

"And that’s not to say that there's a preordained result about how these marriage and family debates are going to work out at the State level. But it is to say that, if we're going to have a real, serious discourse about changing 2500-year-old patterns about how marriage and family life come together in the West, we better do that with full ventilation of all of the philosophical, theological, moral, economic, sociological issues at stake."

Thus far, I see few signs of a "real, serious discourse" in my "religious community."

John Witte, Jr., is the Jonas Robitscher Professor of Law and Ethics at Emory Universty, where he is also serves as Director of the Center for the Study of Law and Religion. You can download or purchase the entire interview here. While you're at it, subscribe to Mars Hill Audio.