Whether or not the Supreme Court decides to review either the federal Defense of Marriage Act or California's Proposition 8 this year, their decision is sure to be accompanied by another round of hand-wringing from social conservatives. "Traditional marriage" is threatened by "activist judges," we'll be told, going against millennia of human culture.
There is of course no such thing as "traditional marriage," simply because there isn't one tradition we could consult on marriage, and which would speak to us with one voice. What the Rick Perrys and Santorums, the NOMs and One Million Moms of the world invoke when they talk about "traditional marriage" is a motley stew with ingredients as disparate as the Book of Genesis and Leave it to Beaver.
That's intellectually dishonest, but it's also a shame. If there is a "tradition" of thought on marriage in the West, then it's a tradition of disagreement, with plenty of different contradictory voices. Becoming alert to this tradition of strife might clarify the terms and stakes of the debate for proponents and opponents of gay marriage alike.
The German Romantics and Idealists lived, worked and thought in the immediate aftermath of the French Revolution. And yet their thinking about marriage shows surprising continuity with present-day debates about gay marriage and civil unions, and fundamentalist "covenant marriages."
These thinkers -- men like the brothers Schlegel, J.G. Fichte, G.W.F. Hegel, and women like Dorothea von Schlegel and Sophie Mereau -- found themselves in a situation in which, like today, the relationship between marriage on the one hand, and theology, tradition and the individual on the other, was very much at issue -- but they responded to it with much greater nuance than we have managed.
Much of what they wrote about race, sex and politics seems outdated, and at times even crass today. Still, it should give us pause that this group of thinkers was able to look at marriage with a greater portion of open-mindedness and creativity than we are in the United States today. Let me just point to three areas where looking at this particular piece of the "tradition" actually complicates the terms of the present debate:
Marriage is not a "Civil Union": First, a point of universal agreement. While there is little that would seem to unite the two sides in today's marriage debate, there is one thing both religious conservatives and gay rights activists can agree on: there is something in marriage that exceeds its civil status, and this something either needs to be preserved for straight people, or extended to gay people.
For the Romantics, marriage had import beyond its civil status (that is, as something recognized by the state and community), but this import, although it concerns matters inaccessible to outsiders, was nevertheless intensely political rather than just a "personal" matter.
They rejected purely contractual accounts of marriage (what we today call civil unions), for instance Immanuel Kant's notorious definition of marriage as a "union of two persons of different sex for life-long reciprocal possession of their sexual faculties" (Kant, shockingly, remained a lifelong bachelor). They did not deny that part of marriage could be a contract -- but they thought it was a good deal more than that.
The Romantics and the Idealists generally agreed that this "more" could not be explained by reference to organized religion. Instead, it could only come from the individual. Who you want to marry is an intensely personal decision, but it's not private. It actually ought to matter to your fellow citizens, too.
Marriage has to do with "Community Values" -- but not in the way you'd think: The Romantics and Idealists de-emphasized a larger community's role in determining who could marry whom, or what they had to do in order to be married. But who married and what they did to marry was important for the community.
Theirs was a moment of transition. The church was increasingly sidelined in administering marriage in Germany, the state was only starting to get into the marriage business. The Romantics and Idealists thought that subjective factors needed to dictate what counted as a marriage and what such a marriage needed to look like.
But that didn't mean there were no rules within marriage. Their conception of marriage was not anarchic -- instead, it was self-legislating.
What does that mean? Where Rick Santorum's position, and others like it, depends on eliding any difference between the marriage of Genesis and the marriage of Leave it to Beaver, the Romantics and Idealists understood that coming to terms with marriage required thinking through the difference.
What Genesis calls marriage seems to be a property relationship, pretty much independent of who is feeling what. And in the idyll of Leave it to Beaver, whatever challenges the Cleavers' marriage is solved not by reference to law or custom, but to June and Ward's overwhelming love for each other.
A real theory of marriage couldn't just rely on feeling, or just rely on the law. Somehow either love had to flow from the legal institution, or vice versa -- the Romantics and Idealists opted for the second version. For them, in marriage love gave itself a law. A law that could ripple outward, and change the wider community or the state.
Marriage and divorce are not opposites, they belong together: The Romantics' treatises, novels and fragments were surprisingly frank in their discussion of marital reality. There was a reason for this new frankness: they were the first generation of German philosophers to get married.
They were also the first generation of philosophers to get divorced. Philosophers from Plato to Hume had been confirmed bachelors; the Romantic generation knew what it was like to get married, and what it was like to want to leave a marriage.
In their philosophy, they were concerned with something like the sacrament of divorce. Fichte's radical idea was that marriage and divorce simply recognize something that pre-exists them -- a marriage that has started before anyone knew, or a marriage that ended before anyone bothered to put that fact into words.
The question is how marriage can be a lifelong union, special among all human relationships, and at the same time capable of dissolution at any point. Any humanistic concept of marriage needs to integrate these two seemingly contradictory ideas -- the proposals of men like Santorum, and Christian Right-artifacts like "covenant marriages" simply refuse the second one.
It's a bit sad that the terms and ideas of our debate lag behind the late eighteenth century. It's probably because one half of the country has internalized these ideas (the Romantics and Idealists influenced thinkers as far apart as Freud, Marcuse and the Transcendentalists), while the other simply refuses to acknowledge them.
But it's a shame, because, whether we're "for" or "against" gay marriage, beyond being desirous or dismissive of "civil unions," much might be gained if we could figure out what is a marriage, what it means to us as individuals and as a society, beyond all mushy pabulum. Given that "traditional" marriage has changed from century to century -- why not add our voices to the centuries-old conversation about it? It would be a shame if all the early twenty-first century contributed to it was "man on dog."