Sunday, March 8, 2009

Madisonian Neutrality:

Over at my other two blogs I published a post entitled "What James Madison Can Teach Us on the Gay Marriage Controversy...." The purpose of this blog is not to make policy arguments. So I am not going to reproduce the whole thing here (simply click to read the whole thing). However, I am going to reproduce the parts that quote Madison and the Founding record.

This post relates to the concept of "classical secularism" or truly neutral secularism about which I blogged before. If you don't remember I showed a clip of Robert P. George of Princeton arguing, whatever secularism is, it is not neutral. If secularism means modern liberal results, then he is right. Government recognizing same sex marriage is not "neutral." But neither is the FMA or government refusing to recognize same sex couples as "married." It's a false dicotomy however, to assume those are the only two options. There is a third and I would argue "neutral" option. And that's the argument of my post over there.

Here is the research:

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.

9 comments:

Tom Van Dyke said...

James Wilson was a "key" Founder by any measure, as "a signer of the United States Declaration of Independence. He was twice elected to the Continental Congress, a major force in the drafting of the United States Constitution, a leading legal theoretician and one of the six original justices appointed by George Washington to the Supreme Court of the United States. [per Wiki]

He wrote explicitly about marriage and would completely disagree.

Although he writes at the conclusion of his world history of marriage that

By the precepts of christianity, and the practice of the christians, the dignity of marriage was, however restored.

he also argues that

Whether we consult the soundest deductions of reason, or resort to the best information conveyed to us by history, or listen to the undoubted intelligence communicated in holy writ, we shall find, that to the institution of marriage the true origin of society must be traced.

He does not make "marriage" and "religion" synonymous and interchangeable, as you argue here. He argues from "the best information conveyed to us by history."

Our Founding Truth said...

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.>

This argument cannot be made, as Madison contradicted himself. Anyone else?

Our Founding Truth said...

Again Arianism and Socinianism were popular forms of the unitarian heresy believed in by many notable Founders.>

There was a small minority of unitarians, including John Adams, and Joseph Story. Who were Arians and Socinians?

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.">

This is a debate no one knows the answer to, unless new revelations of Madison are discovered.

Maybe he didn't want judges to determine what Christianity was, or that he didn't know himself what it was; no one can make that determination. From his seminary training, he knew from the Bible text what heresy was.

The controversy isn't as large as made up to be. Unitarians believed the entire Bible inspired, rejecting Christs' atonement and Divinity. If they did believe in the Virgin Birth, they had to have seen their contradiction in belief.

If they didn't believe in the Virgin Birth, what then?

Jason_Pappas said...

Marriage is, among other things, an economic contract. It’s a very peculiar open-ended lifetime contract that is abolished often at great cost. No other contract is like a marriage contract. I suppose a libertarian should advocate any consensual contract. But would one advocate selling oneself into slavery? If not, is it different in degree or kind? Is “alimony for life” different than taxation? Is it not volitionally-entered partial slavery?

Yes, those are rhetorical question. I raise these points because marriage is quite a unique contract; it is truely unlike any other contract. One shouldn’t extend its use without conscious thought on these matters.

Being a romantic, of course, I’d be the last to deny the blessings of a marital union to any two people in love. I would not deny it to gays anymore than adults beyond child bearing age. Surely such declarations of an enduring commitment to a lifetime together are a welcome exception in an age of the transitory and superficial pleasures. What true conservative wouldn’t welcome this?

But I’m not unaware of the familial origins of this special contract that gives rise to the need for an exceptional degree of economic entanglement. I tend to tread slowly in territory that extends the power of the state to enforce contractual arrangements that so solidly bind two people.

Does no one share my concerns?

Brad Hart said...

Jon:

As a slave-holder, didn't Madison essentially put restrictions on marriage? After all, slaves were not allowed to marry one another, and I haven't read anywhere that Madison objects to such a practice.

Also, if we substitute "marriage" for "religion" as you suggest with Madison's "Memorial and Remonstrance" couldn't we make the exact same argument by subistituting the word "Polygamy"?

Tom Van Dyke said...

Let's substitute "chili cheese fries."

Brad Hart said...

Mmmmm...I LOVE chili cheese fries!!!

Explicit Atheist said...

"I showed a clip of Robert P. George of Princeton arguing, whatever secularism is, it is not neutral..."

It is true that secularism is not neutral between the Hebrew, Chritian, Islamic bibles or any other holy book and our constitution. People who use their Christian bible as the frame of reference for governing instead of our constitution are ipso-facto arguing from outside of our legal framework. This is the central fact that you, and many other people, sort of tip-toe around because it is unpopular and therefore inconvenient. From the point of view of our constitution, neutrality is not about whether or not our laws comply with the bible, its about whether or not government actions respect equal protection before the laws for citizens of all religious beliefs and of no religious belief. The concept of equal protection before the laws is irreconciliably and directly in conflict with the bible where the first or second commandment, depending on which religious tradition's version of the ten commandments is cited, is usually some variation "You shall have no other gods before me". So under our secular legal framework, permitting marriage for gays is more neutral than forbidding marriage for gays because the latter policy is a closer fit with the non-biblical, indeed the anti-biblical, constitutional "equal protection before the laws" neutrality concept.

Explicit Atheist said...

Correctiont to above: The former (not the latter) policy is a closer fit with the constitutional neutrality concept.