I don’t agree with you very often, but this essay is terrific. This is by far your best work, that I have read.

“The state rightfully does not allow and will not enforce contracts subjecting innocent third parties to harm as a consequence of contracts that these third parties have no opportunity to sign on to or opt out of.”

Tell that to the legislators 45 states that keep the birth records of adopted adults, who had nothing to do with their adoption, sealed.  They in fact, argue, that the adopted person is not a party to the adoption.

If adoption is a superior alternative to abortion, and total anonymity is a necessary incentive for a women to give a child up for adoption, the current regime may be preferable to alternatives.  But I do see how it could be very painful and disorienting to certain adoptees who want to know their biological parents background, including for medical reasons. I have no simple answer to this question and have given it almost no thought.

Mr. Roach

I find you difficult to read. I couldn’t get past the first
paragraph without you contradicting yourself. You start off by saying,

“Well, truth be told, because the state kicked the Church out of the marriage business in the name of secularism in the 18th and 19th Centuries, but here we are.”

You then go on to say,

“that’s why states, under laws, have almost always concerned themselves with some bare minimum of rules limiting who can get married”

So which is it?

If this isn’t bad enough you go on to say,

“The state (as in NY, FL, etc.) should be in the marriage business because marriage is primarily about taming heterosexual men”

Really? Is this your professional opinion? Or is this why you had to get married?
I guess we men haven’t progressed beyong the troglydites who sing,

“Gotta find a women, gotta find a women”

Or I suppose you’re speaking of all those low IQ men not like yourself?

I gotta hand it to you. You do bring an antagonism that compels people
to comment.

Many state and legal functions (or at least legal determinations) were once undertaken by the Church, which had temporal power.  When it lost this power, the state took over these functions.  So Church and State both had power, and thus both might be included under a libertarian definition of state.  One might learn this in, say, 8th Grade world history courses.

The rest is my informed opinion.  I realize it’s not what you might learn at Oberlin College or wherever, but it’s not that controversial among people who’ve lived a bit.  Just ask the secretaries at work; they’ll agree “men are pigs,” something quite evident after women gave up the power of chastity under the influence of the same sexual revolution that now seeks gay marriage.

I am not a proponent of gay marriage.  However, Mr. Roach’s conclusion doesn’t hold water.

Although Mr. Roach is correct regarding the importance of marriage in legitimizing the progeny of the marriage and insuring them support from deadbeat dads, that doesn’t relate to the propriety of gay marriage, from a legal standpoint.

Even if we adopt the more dubious assertions of Mr. Roach, regarding marriage being necessary to rein in rampant male promiscuity, that still has no relationship to the proriety of gay marriage form a leagl standpoint.

1.  Gay marriages, by definition, won’t reuslt in children.  Therefore, there will be no third pary benficiaries of the union.  Accordingly there is no need to protect the non-existent children.  (Under an adoption scenario, if the state allows gays to adopt, shouldn’t those kids be entitlted to the same protection as “regular” kids?)

On the rampant promiscuity argument, doesn’t that apply equally to gay men?  (Perhaps even more so, from an empirical standpoint).

Therefore, Mr. Roach’s conclusion is a non-sequitur of his premises

Although gay marriage may be anathema, it is not a legal one.

In the era of No-Fault divorce, does this essay have any meaning?  The Woman walks out - on a whim, not for any reason, takes the children, and sticks the man with the bill - if he is stupid enough to marry her.  If they remain “shacked up”, he retains far more rights.

I do wish Gays will now have the pleasure of “family court” - but some of them are from the BDSM and might actually enjoy it.

What you said might be applicable in the era that banned pornography, and TV was filled with scenes of cigarettes and rarely bedrooms.

With the state taking an active role in destroying families (sometimes directly as in the recent FLDS case in Texas), the Libertarians have the better argument.

“The state rightfully does not allow and will not enforce contracts subjecting innocent third parties to harm...”

I think it needs explaining how gay marriage harms children.  As I understand it, gay men and lesbians are already able to adopt children.  Lesbians also often have their own children via an informal sperm donation, and these children aren’t taken away from them. 

My own feeling is that gays are probably not good adopters in general, but it may often be better for a child to have gay adoptive parents than to stay in the tender arms of State authority care; I’d consider them adopters of last resort.  I’m not sure how this relates to gay marriage though?

As someone who is the father of an illegitimate child, and far from promiscuous, if can assure you that the state has very little of the interests of my son in mind.  The state has done very well in ensuring that a good chunk of my money goes to my son’s mother while also doing everything in its power to make sure he has no positive male influence in his life.  I have had to fight for every minute that I get to spend with him.  Luckily for the both of us I am able to take considerable amounts of vacation time to spend with him and his mother is more than willing to be rid of him for weeks at a time.  I am the far more responsible parent but the courts tend to treat all men like criminals because their main aim is to break families up not keep them together. 
I can say definitively that all parties would be much better off if the state got out of marriage.  I would suggest that you also stop trying to link liberal and libertarian.  There is nothing liberal about wanting to turn marriage back to the churchs where it belongs while there is everything liberal about wanting the opposite.

Chris, I think you’re making the same naive mistake most gentle, civilized men make about the fact that it’s basically men who are the prime perpetrators in the game of promiscuity and tendency to break the marital contact. Please take a look at the following two pieces—both of them book reviews by Roger Devlin providing some very eye-opening insights into the alleged feminine avoidance of promiscuity, and the thinking patterns of even those women who supposedly want to say stop to the recent developments:

http://www.theoccidentalquarterly.com/archives/vol7no2/v7no2_Devlin.pdf
http://www.thornwalker.com/ditch/devlin_shalit.htm

Research also shows that men suffer to much higher degrees from loss of marriage, and not due to financial reasons alone, although those are frequently quite devastating in themselves.

The whole deal of gay marriage is a wedge issue: the purpose is to completely de-legitimize the family as a deliberately-privileged social institution, and reduce it to the level of an ordinary deal providing primarily a few conveniences. (How ironic that those who criticized yesterday’s marriages with being loveless and for “convenience” only today see marriage as nothing more than a convenience where love means pretty much sexual lust and hardly anything else.)

Mr. Roach

I thought you would do better than an 8th grade history lesson. The least you could have done was to pull some Plato out of your ass and tell us about his plan for the abolishment of marriage. Or perhaps you might give us all a lesson on the investiture controversy. Or tell us of the “After Life in Roman Paganism” where Franz Cumont explains how “the souls of men aspired with ineffable ardour to the radiant spaces of heaven.”

Instead you treat us to the separation of church and state. An eight grade history lesson. Are we to assume that you disagree with the premise? Conservatives of your stripe need government to control your life. Or as you say “without direction by chaste women and their stern fathers” where might you be. A chaste state and a stern legislator might do the same.

This statement further explains your twisted “informed opinion”.

“States rightfully make marriage attractive through various legal blandishments in order to create a financially and socially viable institution for rearing children. Socially, we honor men who enter it as “adult” and “responsible” to counter-balance the inherent trade-offs naturally promiscuous men face:  the legal renunciation of the right to have sex (and children) with others.”

Legal blandishments never crossed my mind when I married eighteen years ago. I had no need for the state to create anything for me. “Counter balancing the inherent trade offs”? Are you for real? Quite a calculating institution the state has devised. LOL

Like I said to another poster who questioned my matriculation, it looks as you were robbed by whatever university you attended. Perhaps Oberlin would have been a better choice

@ Bud Wiser, “You wrote, I gotta hand it to you. You do bring an antagonism that compels people
to comment.”

Bingo.  That’s his schtick.

My point above was not to oppose gay marriage, per se.  Nor was my point to defame the honor of all men as pigs.  But to my critics, I must ask:  why does nearly every society regulate sexuality?  Why are so many single moms perpetually unmarried and unlikely to get married? Why is marriage on the decline?  Why, with marriage on the decline, are so many men finding it so easy to get laid on a regular basis without responsibility? So, even if “legal blandishments” never crossed anyone’s mind while getting married, the lack of real social and legal benefits to a lifelong and potentially very expensive commitment may cross someone’s mind if he’s getting the milk without having to buy the cow, so to speak.  Or is this news?

My chief point was to show that the “state being in the mariage business,” particularly by making it somewhat hard to enter and (in the past) very hard to leave, has analogs in the contract law, particularly areas of law that relate to third party effects, formality, and the prohibition of certain contracts on the grounds of their impact on third parties. Since any contract is an implicit call for state enforcement, it’s perfectly reasonable for the state to enforce some contracts and not others for any number of reasons including ease of enforcement and social benefit (or cost) to making a particular contract legally enforceable.

It is a longer, more detailed argument to say why the western marriage arrangement is the ideal and that this also implies something about how the law and society in general should treat so-called gay marriages.  I realize my point above was more circumscribed.  Of course, these mental gymnastics of explaining and defending marriage (as in the mental gymnastics of dealing with any complicated taboo) are important if you don’t believe long tradition is reason enough to keep marriage as it is in the absence of some compelling reason for change, as I do.

Quote from Roach: “The state (as in NY, FL, etc.) should be in the marriage business because marriage is primarily about taming heterosexual men, whose passions and bad behavior create real problems without a norm (supported by laws) in favor of marriage.”

Here we go again with Roach totally misunderstanding the nature of centralized power in civilization and he manages to destroy the entire basis of paleoconservative thought about the roles of the state, church, and family. By being in “the marriage business” (a term I resent), the state does not support marriage, it destroys it and the evidence of the last 40 years clearly demonstrates that fact.

Why can’t the state ever support marriage? Because if marriage tames men and orders society then there is less need for the state to tame men and order society and therefore, the state has less claim on the resources of its citizens. By its nature the state desires more power and it should be given power over marriage. 

Marriage is the natural hierarchy and the enemy/opposition of the state. If the state tries to “support” marraige by trying to define of the duties of marriage then by definition it has suplanted the reason for marriage and thus must by its naturel removes the natural definition and duties that marriage has by nature.

But if if there is no marriage and the state now determines what is virtue then what institution can rightly claim the state has too much power and it behavior is not virtuous but wicked? None!  The virtue of the State is found in the virtue of its rulers and the virtue of its rulers ise found in virtue of family and that family that is then instructed by the priesthood on the role of the family.

The power of the priesthood is limited to the affairs of faith,family, and charity by the State by its proper rule in its role of the adjudication, legislation, and adminstration of moral laws and the defense of the land. Thus order is maintain in society and the role of the state limited, slavery of the people averted, and the people defended in faith and by force.

Checks and Balances occur between natural institutions that are in their natural roles and Roach promotes the dustruction of those roles in his articles and becomes the anticonservative.

Has Roach ever written an article here that has not been in favor of increased state power and promoting fear of “low-IQ” peoples whose unenlightened cultures and disgenic genes threaten the whole of our civilization? No, it is Roach that is the threat because he turns to the progenitor of our demographic problems to solve them when the answer lies in local people loving the land and thier families. A people who have a love of having their lands and having their families will not will not want or allow different peoples to have those things here and understand that they shouldn’t have those things here because they cannot be given away.

But it is the capitalist state that has told us endless lies about who we are and what we should want and has waged war on the families of this nation and Roach tells us to turn to this godless monster of statism and capitalism and thank them for the wonderful job they have done with state marriage, child courts and easy divorce.

To that I say “Get thee behind me Satan....”

@ all, A typical Roach column.  He relies on unsupported facts, throws in some illogical assumptions, which he uses to bookstrap for his unfounded conclusions.  When confronted with the obvious, he runs for cover, changes the subject and insults those who have pointed out his transgressions.

@ Septeus7, I enjoy the tone and content of your posts.  Well thought out and expressed.  It is nice to have a rational voice to balnce out the screeching from senor Roach.

@Septeus7

You somehow mix capitalism with statism in your second paragraph, please understans that those two are total opposites.  What you call “capitalism” should be “corporatism”.

And yes Mr. Roach, I have to agree with most here, your articles are getting disturbingly more pro-state & authoritarian every day.  This article would have no doubt easily been put on the front page of National Review online (Matter of fact, all their articles on same-sex marriage and government involvement all take the same talking points your does)

There was a time when “Conservatism” meant as little government as possible.  Now it seems the neocons are not the only ones open to the idea of big brother these days.

Actually, Jerry, there never was such a time.  Conservatism began in opposition to the French Revolution. Libertarian hangers on seem to have confused the conservative opposition to the war and concern for socialism and the federal government with an overall libertarian outlook, which in fact, is not what traditional conservatives were about.  If you read Burke, de Maistre, Russell Kirk, Nisbet, and other 1950s era paleoconservatives, along with such modern greats as Pat Buchanan, Joe Sobran, and Sam Francis, what I’m saying it will be obvious is in the conservative mainstream.  If some folks at National Review agree with me, that’s not exactly a point of shame.

“If you read Burke, de Maistre, Russell Kirk, Nisbet, and other 1950s era paleoconservatives, along with such modern greats as Pat Buchanan, Joe Sobran, and Sam Francis, what I’m saying it will be obvious is in the conservative mainstream.”

Mr. Roach, for some contributors to this site you might be treading on dangerous ground when
you identify 1950s era conservatives as “paleoconservatives.” If you look back on the Lincoln-bashing debate,
some took Mr. Havers to task for allegedly using the epithet of folks who lived and wrote prior to the
neocon/paleocon divide.

I try to deal with this issue with some rigor in a longish post, I just put up.  Some of these boundaries are fuzzy.  The 50s era crowd was called at the time the New Right, in distinction with Mencken, the America First folks, et alia.  It seems to me there was some conservative unity, though, until the end of the Cold War, where everyone scattered and disunity prevailed.  this kind of history of ideas is always challenging, I’ll concede.

Mr. Roach

I’m happy to see you address the question; what is conservatavism? You said:

“Actually, Jerry, there never was such a time.  Conservatism began in opposition to the French Revolution.”

Au Contraire. I would agree modern conservativism finds it’s roots in such works as Burke’s reactionary piece, “Reflections on the French Revolution.” However not only was this a reaction to the reign of terror, it’s been argued it was a direct response to Humes Treatise on Human nature and his destruction of natural law.

“True” conservativism has it’s roots in classical liberalism. Before Burke Adam Smith railed against government intervention such as the corn laws, and grounded early conservativism in the Libertarian style Laisse Faire mold.

Burke was critisized by many of his contemporaries for his over reaction to the atrocities of the French Revolution. The boy plum lost his head over it. Never to be the same again. His brand of conservativism put more stock in government than the individual.

Please don’t take my jabs at you personally. You seem like a chap with alot of heart. My background may be autodidactic, but I’ll give most political philosophy majors a run for their money. Truth be told I only made it through two years at a local community college in Northern Michigan. Dropped out. Far too many liberal weenies for me.

Mr. Roach,

When you state that conservatism has its roots in Burke’s criticism of the French Revolution you must remember that the state that he is defending is a Catholic Monarchy not a democracy.  I don’t see how this supports your argument in any way because the state he is defending would be one in which marriage is controlled by the Church and not a secular state.  You stated that the state through its regulation of marriage has caused some to consider the implications of marriage which I will concede.  Intelligent individuals are forced to plan their exit strategy before they even take their vows.

I believe Burke’s defense of Catholic France matters in general and in this particular because Burke did not like radical change, even change in the direction of what purported to be English-style liberties.  The French state supported the Church in different ways in ancien regime France, including by enforcing the rulings of ecclesiastical courts, providing pensions, allowing various local privileges, and, most famously, by allowing the Clergy to be represente din one of the Three Estates of the French legislative body.  So I don’t agree that Burke in general or in this particular does not support my broader position that the state (whether directly or through some divided system, such as a Church empowered with temporal authority) can easily avoid concerning itself with marriage because marriage has significant legal consequences and, like other areas of law, whether to enforce marriage implicates the rights and interests of otherwise powerless third parties like children.

Hmmm, it seems that you have found a small clique of people who apparently really, really enjoy reading your
articles.  If they didn’t, it’s hard to explain why they would keep reading it.

As for the similarities to the National Review, I ask whoever pointed out, “Was the purpose of Takimag.com to find out what they said at NR and then say the opposite reflexively?”

Also, there seems to be a growing number of people who seem to think either 1) that Takimag is not
paleoconservative, or 2) by adding the prefix “paleo-” you make the word mean the precise opposite of what
“conservative” means.  That a paleoconservative should take a conservative approach to marriage law is
surprising why?  If you don’t like conservative reasoning about marriage, you can always go read libertarian
or liberal approaches, which have more in common between them than either has with the conservative view.

“You somehow mix capitalism with statism in your second paragraph, please understands that those two are total opposites.  What you call “capitalism” should be “corporatism”.

I disagree for two reasons. First “corporatism” refers to the ideas of Adam Müller who was a fierce opponent of free trade and the industrial system, was something of a pre-Chestertonian, and was an opponent of the ideas of the French revolution. In short, he was a Paleoconservative’s Paleoconservative.  Corporatism’s bad name comes from the former Marxist convert to “Coporatism” (much like today’s neoconservatives are “conservative") named Alfredo Rocco who become a Fascist. Müller’s Coporatism is system of guild shops and trade unions and is no way related to today’s Capitalist system.

Second, the capitalism system is the statist system established by Henry VIII when he seized church lands, then the guild lands, and finally the public commons and sold off to “private interest” (meaning his buddies) and forcing the starving dispossessed peasants into the cities to work for the “capitalist.”

Every imperial expansion of the British Empire (often at the behest of the East-India Trading Company) involved the same system of taking lands from native peoples who had lived there for centuries without a formal legal system property rights, declaring those lands unowned and selling them to the capitalist class and then forcing the suddenly landless peasantry to work in the factories or die.

That’s why PJ Proudhon oxymoronically declared “property is theft.” This British system continues through the IMF and the World Bank and is the heart and soul of the “actually existing capitalist system” and one need look no further than the Kelo decision as proof that kind of capitalism is alive and well in American today.

I’m not attacking the “capitalism” of Adam Smith or Ludwig von Mises anymore than I would attack the socialism of Proudhon, Bakunin, or Tucker. They are simply irrelevant to the real world because I believe the word “Capitalism” has historical meaning just as “Communism” has historical meaning.

Capitalism is a real system that exists in a real historical context of British Imperialism and later the Industrial Revolution. The word has no meaning apart from those contexts because under Capitalism investment has meant the imposition of a statist regulatory system written by, lobbied for, and in the interest of the capitalist class.

This is one of the reasons why I am not a libertarian because the constant use of libertarian principles to defend the “property” of certain people using the “homestead principle” when that very property was legal created in contravention of that very principle.

This history proves the libertarian idea of “rights” are a delusion to be used as a tool to overturn long established principles of western society such as the “station in life” being tied to the family estate. Further more the utilitarian system of rights that is establish must use greater and greater government intervention in order to enforce those “property rights.”

Daniel Larison has commented on this problem of enforcing “systems of rights.” This is the main reason I call myself a paleoconservative is because I reject the liberal/libertarian notion of “rights.”
Society is maintain by system of obligations that are enforced by authoritative institutions of family, church, state, and the natural hierarchies that will arise in the economy.  It is a sense of honor that is tied to fullfilling our social obligations that makes a just and stable society not a demanding of entitlements from other people.

“Actually, Jerry, there never was such a time.  Conservatism began in opposition to the French Revolution. Libertarian hangers on seem to have confused the conservative opposition to the war and concern for socialism and the federal government with an overall libertarian outlook, which in fact, is not what traditional conservatives were about.  If you read Burke, de Maistre, Russell Kirk, Nisbet, and other 1950s era paleoconservatives, along with such modern greats as Pat Buchanan, Joe Sobran, and Sam Francis, what I’m saying it will be obvious is in the conservative mainstream.  If some folks at National Review agree with me, that’s not exactly a point of shame.”

You do realize, Mr. Roach, that Burke and de Maistre were Whigs; in other words “classical liberals” mugged by the realities of the French revolution? 

Both had only obscure connections to the older existing Traditionalism, which as a “modern” conservative you don’t seem too keen on.

Saying that the forces of Reaction emerged only in response to the French revolution is standard leftist history.

Savrola, I strongly disagree. It is simply not accurate to describe the Whigs as Classical Liberals.  Some, no doubt, were influenced by Classical Liberalism. Burke, for example, was well known to have had correspondence with Adam Smith.  But England had liberties and what may be called liberal institutions long before John Locke and company came along. I think it’s more accurate to say whigs represented the prerogatives of localities and aristocrats, whereas the Tories represented the Crown and the merchant classes.  It was certainly not the case that one was generally pro-change and the other not.  Your history is just off; the parties represented different regional interests as much as anything else. 

I do think Burke’s recognition of the fact that good, free institutions could emerge without resort to liberal political philosophy is pretty clear in this passage:

“Old establishments are tried by their effects. If the people are happy, united, wealthy, and powerful, we presume the rest. We conclude that to be good from whence good is derived. In old establishments various correctives have been found for their aberrations from theory. Indeed, they are the results of various necessities and expediencies. They are not often constructed after any theory; theories are rather drawn from them. In them we often see the end best obtained where the means seem not perfectly reconcilable to what we may fancy was the original scheme. The means taught by experience may be better suited to political ends than those contrived in the original project. They again react upon the primitive constitution, and sometimes improve the design itself, from which they seem to have departed. I think all this might be curiously exemplified in the British constitution.”

The French Revolutionaries purported to be implementing a British-style freedom that was more perfect and more pure on account of getting rid of the crown and having been derived from philosophy directly, such as the writings of Montesquieu.  Burke was skeptical on account of the fact that the French “race” was distinct, had different habits, different traditions, that liberty needed to be balanced by various moral controls on he people (from an Established Church, for instance) and because the apparent contradictions of the British system served various important ends that may not be easily discerned.

I think you forget, sir, that the Whigs were all about trade.

They supposedly supported the interests of the bourgeois and were instrumental in the gradual dissolution of monarchism and the promulgation of the now disproven notion of representative democracy

In other words, they were leftists.

Burke was clearly unnerved by the French Revolution, and the treatment of the French Royal family, hence his famous “swords leaping from scabbards to protect the French queen’s honor,” (I’m paraphrasing badly, I know). But Burke was scared into Reactionary-Monarchist mode.

In his youth, Burke’s beliefs were in “market anarchism.” with overtones of humanism, as his work, “A Vindication of Natural Society” which has no reason to be a satire, proves.

“It was certainly not the case that one was generally pro-change and the other not.”

With all due respect, I’d advise you to cease work on that straw man you are constructing.

No where did I even imply that this was the case. However, your post seems to indicate a belief in the Whig theory of history, as being a conflict between the forces of progress and reaction.

“But England had liberties and what may be called liberal institutions long before John Locke and company came along.”

One could trace the English tradition of liberty back before Julius Caesar’s invasion. More of a racial characteristic, than anything else, it seems.

“the promulgation of the now disproven notion of representative democracy”

It is absurd statements such as this that relegate this site to the lunatic fringe.

“It is absurd statements such as this that relegate this site to the lunatic fringe.”

Who am I to question to question the wisdom of such a representative of the majority as yourself?

Excellent summary of the position against modifying traditional heterosexual marriage into anything goes, including polygamy and so on.

One thing you might mention is the wide body of alternatives to marriage via contract law...which I thought would be the focus of your essay from the title.

Gay people are NOT discriminated against as much as they protest. It was gay men in the AIDs crisis that explored and developed the recognition of cohabitation contracts, living wills, power of attorney and other ways of defining legal rights for their intimate relationships.

Defining marriage as heterosexual does NOT mean that gay people are denied property rights, the right to leave
their property to whoever they want, or legal recognition of their live-in arrangements, or designating whoever they want to take care of their affairs and property or to make life-and-death decisions in the event of hospitalization or illness.

Gay marriage is a false front issue, it’s really about mandating “acceptance” of homosexuality as “normal” by redefining the very institution that is the basis of human culture and society. The REAL “libertarian” position should be to ignore state mandated “marriage” in favor or private contracts recognized by law.

Given the dominance of secular materialism, and the urbanization of American culture, “alternative” relationships
are not going away. Conservatives, liberals and libertarians should all agree that alternatives to marriage in
contract law should be recognized, and there is no need to redefine marriage.