Wow, I really wish I would have read a piece like this before going to lawschool. I never looked at the law as an intrusion into religious and personal reality before. Very interesting, albeit disturbing.
What is culture? Sometimes we use that word as the opposite of economics or law. Here I mean something very specific. Culture, as James Davison Hunter put it, is the power to name reality.
If you doubt that, think about divorce for a minute…
When the law actually endorsed unilateral divorce, it changed the terms of everybody’s marriage. Now the happily, romantically married may not notice this in practice. But not only the bad marriages, but the so-so marriages, the good-enough marriages were and are profoundly affected by the law — not only directly, but by the cultural changes in the public understanding of marriage that the law only partly caused and but certainly reinforced and institutionalized.
If you have a right to divorce at will, what you lose is the right to make an enduring marriage — at least if you live in consensual (shared) reality.
I can still hold the view that divorce is wrong — that I have no right to divorce because I made a vow to stay married. But with the advent of unilateral divorce, my views became a privatized view of marriage, not part of the shared reality defined by the law. We privatized this view of marriage precisely when the law privileged the progressive view of divorce.
Maybe you think this was a good change. I will not stop to argue the point now. What I’m trying to point to (for those geniuinely striving but challenged to understand my argument) is that the law mattered. And that the consequences of this legal change was not, in a simple sense, the expansion of liberty, but a change in power, driven in significant part by the cultural power of the law’s power to name reality…
So yes, if you follow the analogy to divorce, parents will still be able to teach their children their own views about what marriage is. But the law will be constantly repudiating that view in a number of public visible ways. Parents are having a very hard time fighting the progressive views of sexual culture, enshrined at law, in any number of ways. This will make it much harder.
When people say the “law is an educator,” that’s true, but it doesn’t go far enough. In this case, the law is an arbiter of reality: Who is really married? Who is really divorced? Who is having an out-of-wedlock child? Who, for that matter, is committing adultery?
The law’s power to name reality matters.
via The Amazing Power of The Culture (Part 3) – Maggie Gallagher – The Corner on National Review Online.