Note: I started writing this with the notion that the category error alluded to below was a mistake and a sidelight hiding behind the issues being argued. As I continued in writing I have come to believe that the category error is both the primary reason for the arguments and further is a fundamental problem which is well known.

Much wroth, fury, words, and accusations of ignorance, bigotry, and perversion have crossed from both sides in the recent decades long struggle by various factions in the debates about marriage and who might be married rightly. A few observations

  1. Defenders of SSM remark that this sort of marriage is private and affects none outside of the marriage. Yet, if this were so, then why would not civil unions suffice? The logical answers is because this reply is a lie. It does in fact affect others and in this lies a category error to which I alluded in this essay’s title.
  2. To read the papers and hear the debates this is an important issue. Yet, why is that? Why is that more important than other issues. As that famous statistician Bjorn Lomberg  pointed out that getting vitamin supplements to the third world would saves tens if not hundreds of millions of lives (and would be cheaper and more effective than most of the aid we send to the third world), world-wide millions are affected by human trafficking indeed the numbers trafficked within the states is comparable to those affected by SSM … and those affected are mostly well educated affluent couples. Yet what debates are heard?

How are these issues a sidelight issue and the other a hot button issue? I suspect my  I offer it is because those entrenched against SSM are also committing that same category error. What is the error of category to which I allude? Simply the following, laws and lawmakers are not our spiritual guides. Note, the use of the term “spiritual” is not the normal one, but one which I will continue in this essay and perhaps in further essays.

So let me digress for a moment. Spiritual? What is that? In the introduction to Dimitru Staniloae’s book (Orthodox Spirituality), it is pointed out that in the Eastern Christian doctrine, your spiritual life and its tending is perhaps better translated as your ethical life and its care. Spiritual health and ethical well being are synonyms.

What is legal or not and what is righteous (in good spirit or a good moral/ethical decision) are independent. This is a founding principle of American jurisprudence. (Or is it?) It certainly is the assumption now. Mr Daschle defended a Senatorial philandering colleague by pointing while he while he was dishonest he didn’t break any laws. The correct reaction to this is that the colleague got his priorities exactly backwards, i.e., it is more important to be ethical than stay on the right side of the law.

Laws are not ethics. Laws and what lawmakers conspire to create has very little to do with ethics and instead its primary purpose is to provide a framework. This framework provides so that peoples may live harmoniously alongside each other in an ordered way.  So that, when conflicts between people arise, there is an orderly way of handling those same conflicts. Personal ethics overrides and sits over the law. For the most part, there is no conflict, most of our choices, our ethical decisions do not lead us toward choices which are illegal. Where they do, it is right, it is correct to choose the ethical over the legal. On the other hand, there are things you may do legally which however are not ethical. Even where there is no conflict, normally ethics binds our actions tighter than the law.

Solzhenitsyn warns that this separation that is part of modern Western democracies (and was part of the former Soviet state) is an error. That itself is an interesting counter point. So it seems likely that this why this debate is important is not what it is about, but sort of the issue is the ground on which it is being made. What is at stake is perhaps not about the particulars of whether certain young dinks (dual income no kids) can have their relationship legalized or not but really what is being debated here and in other forums is whether law should be neutral or be admitted to have spiritual (ethical) content or should it not. Kant (and our founders) explored law devoid of ethics, can a safe lawful republic of demons (not angels) be constructed or not. Perhaps it can. Perhaps it can’t. The question at hand is should it? Recall the Ratzinger/Habermas debate, debating whether a democratic society can be constructed and sustain itself independent of religion, i.e., “does it need things outside itself to sustain itself.” Ratzinger and Solzhenitsyn think not. Bertrand de Jouvenal pointed out in his meta-political science musings about what he termed Babylon (the large multicultural state) envies the unity of the small state. My reading of Solzhenitsyn (and Jouvenal) is that a solution exists. If the larger federal state limit itself to promoting commerce and unity between smaller entities within itself, while foster their ability to form strong local identity, laws and praxis then you could have the best of both worlds. You can find local loyalties and ties and bonds within the framework a larger multicultural state.

Both sides of the cultural debate miss this point. Both sides wish to apply the same laws and sensibilities in artists boroughs of San Francisco, in Amish villages in Ohio, in rural Lutheran Wisconsin, and so on. Why? Why try? It seems wrong to insist that behavioral norms universal.

Locally laws can be tied to spirit. Federally, the are not, but there they run to the Habermas separation of Spirit and law. It seems to me laws about birth, death, marriage are those which the federal level should keep its hands away, to set aside for local regions to coin their own practices, to tie their own view of ethics and spirit what is allowed, to what is righteous in their region.

Instead of insisting that laws be spiritual or devoid of spiritual considerations is wrong. Federal laws laws which bind us all, might be best be light and aim only to promote commerce, unity, and ease frictions. Local laws … let them tangle and wind the ways the local choose. That is, after all, nothing more than freedom.

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    Filed under: Ethics & MoralityGovernmentJudiciaryMark O.

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