With the war in Afghanistan not yet over and the economy still reeling from the Great Recession, who would have predicted that 2012 would be the year of social issues? But so it is proving to be, between Rick Santorum’s surprisingly strong performance in the Republican primaries, the Obama administration’s mandate for employer-provided health insurance to cover contraception, and—in a series of battles in legislatures from New Jersey to Maryland—the ongoing struggle over same-sex marriage. Where the last is concerned, polls indicate that while more Americans still oppose gay marriage, the majority that does so is dwindling rapidly. ...

How has this happened? The gradual triumph of gay marriage is not merely due to a legal change that began 20 years ago or even to the sexual revolution of a half-century past; rather it is a consequence of a shift in the foundations of Western civilization that has been taking place over centuries—a shift from Christian to liberal foundations. So profound is this transformation that even the opponents of same-sex marriage are not exactly fighting to recover the old way of life.

To understand how marriage has changed, and not changed, over the course of Western history one can hardly do better than turn to Harvard sociologist Carle Zimmerman’s Family and Civilization as a primer. First published in 1947, it remains an invaluable, indeed prophetic, guide to the marriage debate and wider culture wars. While same-sex marriage may be an absolute novelty, there have been pitched battles over the definition of marriage before, as when the Catholic Church told the barbarians who had overtaken the Roman Empire that they could not continue their practices of cousin marriage—a tradition from time immemorial—if they wished to be Christians.

Indeed, as Zimmerman writes, “in the course of seven or eight centuries the family system of Europe had twice completely reversed its trend” thanks to the Church, which first reformed the socially atomistic conjugal practices of the late Romans before tackling the blood-bound “trustee” families of the invading tribes. “This struggle, one of the most interesting in the history of the Western family, is relatively unknown to us today,” though it was a matter of civilization-shaping importance at the beginning of European Christendom.

The balance between the social extremes of atomism and tribalism could only be maintained as long as the Church was the primary authority responsible for marriage—which it was for over a thousand years. “The barbarian family had to be broken away from clan influences and brought under that of the church,” writes Zimmerman, but “if temporal forces and strong states could take from the church its power, rule, and regulation of the family, then the atomistic type could reappear. Actually, this is what happened.”

Even Zimmerman could not have anticipated same-sex marriage, but he might not have been surprised by it. As Christianity has lost its power in public life, so too have the forms of marriage and family that it established given way to new configurations shaped by the institutions and ideologies that hold power today—specifically, liberalism and the modern state. But did liberalism, with its bedrock principle of legal equality for all individuals, have to lead to gay marriage?

Labels: Christianity, conservatism, culture, discrimination law, gay marriage, gay/straight differences, homosexuality, Lawrence v. Texas, liberalism, religious liberty

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Kody Brown is a proud polygamist, and a relatively famous one. Now Mr. Brown, his four wives and 16 children and stepchildren are going to court to keep from being punished for it.

The family is the focus of a reality TV show, “Sister Wives,” that first appeared in 2010. Law enforcement officials in the Browns’ home state, Utah, announced soon after the show began that the family was under investigation for violating the state law prohibiting polygamy.

On Wednesday, the Browns are expected to file a lawsuit to challenge the polygamy law.

The lawsuit is not demanding that states recognize polygamous marriage. Instead, the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the “intimate conduct” of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own “intimate conduct” so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses.

Labels: culture, Lawrence v. Texas, Marriage, polygamy

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The original punishments — including standing on the gallows for an hour with a noose around the neck — have been softened to a $1,200 fine, yet some lawmakers think it's time for the 200-year-old crime of adultery to come off New Hampshire's books.

Seven months after the state approved gay marriage, lawmakers will consider easing government further from the bedroom with a bill to repeal the adultery law.

"We shouldn't be regulating people's sex lives and their love lives," state Rep. Timothy Horrigan said. "This is one area the state government should stay out of people's bedrooms."

Horrigan, D-Durham, and state Rep. Carol McGuire, R-Epsom, have teamed up on legislation to repeal the law.

Horrigan signed on because he believes it continues New Hampshire's efforts toward marriage equality. In June, lawmakers voted to legalize gay marriage — a law that takes effect Jan. 1.

"We shouldn't be in the business of regulating what consenting adults do with each other," Horrigan said. ...

McGuire, the prime sponsor, believes the moral battle over adultery should be fought under the state's civil divorce laws. The bill would leave adultery as a cause in divorces not filed under the no-fault provision of the statute.

Labels: adultery, culture, divorce, gay marriage, Lawrence v. Texas, New Hampshire

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Rep. Barney Frank (D-Mass.) has been widely criticized for referring in a recent interview to "that homophobe Antonin Scalia," an injudicious exercise in name-calling that obscures Frank's larger and more valid point: that the opinions of the tart-tongued Supreme Court justice leave little doubt of his utter lack of sympathy for gays and lesbians. ...

In the Colorado case, for instance, Scalia would have allowed the state to prohibit laws according gays and lesbians "protected status or [any] claim of discrimination." He called the anti-gay measure "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." Responding to the idea that the Colorado amendment reflected an "animus" toward gays, Scalia wrote: "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy, or cruelty to animals -- and could exhibit even 'animus' toward such conduct."

In 2003, the court struck down a Texas law criminalizing same-sex sodomy. In his dissent, Scalia noted that the court "has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

How Scalia feels about gays and lesbians is not just an academic question. The courts are increasingly emerging as the arbiters of the gay-marriage dispute, and we suspect it won't be too long before the issue reaches the high court. With passages like these in the law books, Frank has reason to be concerned, and he didn't need to call Scalia a homophobe to make his point.

Labels: Lawrence v. Texas, Romer v. Evans

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