I have yet to weigh in publically on the issue of same-sex marriage, and I probably won’t start here, because I’m still thinking about it. My libertarian impulses are battling with ideas I have about the government’s role in safeguarding (and to a lesser extent promoting) established cultural paradigms — traditions, I suppose you can call them — so I reserve judgment for now, though I must say I’m leaning more toward Kurtz than toward Sullivan because I worry about judicial fiat setting precedent that, when pressured, will yield to the “rights” claims of those interested in exploring other potential unions. In short, you can’t unring the bell. Civil unions are fine with me and should be decided upon by states and legislatures and voters.

Still, I do like the debate, because my views are anything but settled. And it’s along those lines that I bring I up a few points Maggie Gallagher makes in a recent article: “If marriage is an individual civil right, it cannot be a social norm. A norm guides and shapes individual behavior, to produce a common good. An individual right is a license for each individual to decide for himself what good to seek” […]

In 1967, when the Supreme Court unanimously overturned laws barring miscegenation in Loving v. Virginia, a majority of Americans supported those laws. A decade later, under the tutelage of the courts, public opinion had changed dramatically. Advocates believe the same thing will happen with same-sex marriage. After a period of initial opposition, a reeducated public will come to embrace this new vision of marriage.

But laws against interracial marriage had no deep roots in religious thought. More important, they had nothing to do with the public purposes of marriage. They were about racism, not marriage. They were about keeping the races separate so that one race could oppress the other. By contrast, the great, cross-cultural and historic idea of marriage–the bringing together of a man and a woman, in the hope that they might raise the next generation together, and in the secure knowledge that every such couple can give any children they create or adopt a mother and a father–is as old as humanity itself […]

Marriage is a pre-liberal institution, a hybrid that fits uncomfortably inside our existing intellectual frameworks. It is older than the U.S. Constitution, older than Locke, older than the Christian church. Government did not create marriage. One cannot call such a social institution into being merely by passing laws. Since government depends on religion as well as culture to help sustain the norms that make marriage an effective social institution, a widening gap between “religious marriage” and “civil marriage” is itself a destructive development.

Is Gallagher right — is there a fatal disconnect between rights and norms? Is the analogy to Loving v. Virginia — a case often invoked as a rhetorical hammer by proponents of gay marriage — even germane to the debate?

Discuss…