WITH MY BODY I THEE WORSHIP, WITH MY MIND I THEE BLASPHEME: Real Live Preacher has a provocative column deriving from his colossal frustration with counseling cohabiting couples who want a Christian wedding.

[EDITED TO CORRECT: No, apparently the RLP is not the author. It’s some other preacher type guy. SORRY. Anyway….]

I’m not sure what I think of the column as a whole. Much of the phrasing seems to downplay the importance of black-ink, license-y marriage, which I think is a mistake both legally and culturally. (Legally: Yes, I do want marriage, which sustains a free society, to be set apart from other designs for living. Culturally ditto, plus the very word, “marriage,” still retains a kind of homey glamour that makes it easier for people to live up to that deeply heroic vocation.)

RLP reassures us that he’s not trying to downplay reg’lar-old-marriage. He’s just trying to deal with the facts on the ground, which tell him that too many pastors and counselors are encouraging couples to a) view the marriage license, not the promise before God, as the thing that makes a Christian marriage; and b) go for a kind of pro forma abstinence, where you sleep together until you decide you want First Whateverist Christian Church to bless your union, then the preacher yells at you, then you don’t sleep together anymore until the wedding day, then all is kosher again and you recommence sex. Very few couples even do that much, but it’s what the preachers try to get ’em to do. And something seems… dishonest, especially because the premarital abstinence is generally not accompanied by a conviction that the pre-getting-yelled-at-by-a-preacher sex was wrong.

And this is a real problem. I don’t think RLP’s column quite hits a bull’s-eye, but I really sympathize with his dilemma. It’s the same one I face all the time as a pregnancy center counselor. I faced it tonight three times, which is why it’s on my mind. (Also why I’m kicking back with a Corona.) I counsel women who really want to get married, but have pretty much no urgency about that, no mentors (often they don’t know anyone in a happy marriage), no sense that sex and marriage are linked, and no sense of how they could live their lives now in a way that will make good marriages later more likely. All and I mean all of these women were raised Christian.

So here’s what happens. A man and a woman have sex. Mostly they use condoms; sometimes they use hormonal birth control; sometimes they use nothing but one another. The woman considers the man marriageable; I generally don’t find out what the man thinks, not from his own mouth anyway. Often they’ve discussed marriage but are waiting until they’re “ready,” by which they mean, financially stable (good luck), done with their educations, already pillars of the community. Marriage is the last item on life’s to-do list.

Then the woman misses a period. Suddenly a whole host of issues are in play. Often both partners were avoiding marriage for many, many more reasons than “I can’t afford a carriage.” Suddenly she has to deal with the fact that her body, against her will, may have created a permanent bond with a man she wasn’t willing to make a permanent promise to–or who wasn’t willing to make a permanent promise to her.

Suddenly she has to deal with the fact that, as an amazing bit of dialogue from “Vanilla Sky” (of all places) quoted by the RLP points out, “Don’t you know that when you sleep with someone your body makes a promise, whether you do or not?”

Now what do I say?

I want to do a bunch of things, many of which often conflict. I want her to leave the center feeling empowered (I’ve complained about this word before, but I really think it’s a crucial concept to keep in mind when you’re fighting the kind of fatalism–especially “everybody’s doing it” fatalism about sex–that constrains women’s lives). I want her to make a good marriage. I want her to raise a child who has a father (which she, most often, does not). I want her to raise a child who has a good father. I want her to strengthen her relationship with God–and I want to help her see some of the ways to do that which she might not have realized (since almost all of our clients do, especially in the crisis-moment in which they consult the center, seek a closer relationship with Jesus). I want her to know that her body is a temple, that she is made in the image of God, that she is loved and that she can be the princess God created her to be.

So I found the RLP’s words helpful, and I’ve added some of them (especially the idea of making the promise made by the body come into line with the promise made to God and one’s community) to my repertoire. Like other pregnancy counselors, I’ve emphasized that you don’t need a big white cake–or even an official license–to be married, but you do need a promise before God and church community. I’ve asked whether my client and her boyfriend would be willing to have an “extralegal wedding” if you like–a promise of lifelong fidelity performed in front of and blessed by their church–and I’ve tried very hard to make this psychologically equivalent to reg’lar-old-marriage. I’m trying, here, to make marriage mean more than the splashy ceremony and the state approval (the former of which is often out of my clients’ reach and the latter of which doesn’t strike them as relevant), without making it mean less than that.

I believe pretty strongly in shaping the counseling session around the client. So sometimes I’ll use the language of “sexual sin.” Other times I’ll talk solely positively, about how God reveals in Genesis and in the ordinary workings of our own bodies that He means for sex to take place only within the context of a marriage promise. I know I don’t do a perfect job, but I try hard not to sugarcoat this basic Christian truth–and I also know for a fact that many Christian communities do sugarcoat it, refusing to talk about God’s plan for sexuality, thus making my job a lot harder!

I’d love to hear other people’s advice on handling this situation.

MORE CHEAPO WEDDING STUFF: Ginger Stampley adds more observations.

Dappled Things adds an important point: “Having seen more than my fair share of annulment cases, I would add another reason to Eve’s list: the long, costly, high-profile preparations for a Princess-Di wedding significantly reduce the couple’s ability to postpone or call off the wedding, even if they see substantive reasons for doing so. ‘Calling off the wedding really wasn’t an option, Father, since my parents had spent so much money on everything, the dresses were all done, the reception hall was paid up, and dozens of guests had already bought their airline tickets.'”

And an anonyreader makes the apt comparison to hyper-extravagant bar and bat mitzvah parties, an annoyance that besets certain richer circles of American Jews. I’ve been to three bat mitzvah parties (only went to the actual ceremony for one of them) and maybe two bar mitzvah parties (again only one ceremony). The contrast was pretty striking, between the small-scale, devout ceremony followed by homemade desserts for a gang of friends and the full-on “rent out the Hard Rock Cafe and slather money all over everything” fiestas. You just shouldn’t spend that much money on giving your thirteen-year-old a party. It builds a bad association between religious practice and luxury; it feeds all the problems attendant on raising non-spoiled kids in wealthy families. (OTOH, I did win two hula hoops at hula-hooping contests at the more lavish bat mitzvah parties, so it worked out from my perspective!)

Anyway, here’s the anonyreader–I agree with all of this except the dissing on fried mozz at the beginning: Fried mozzarella sticks? Doesn’t seem fair to one’s friends to invite them from all over and give them industrial food to eat… Yeah weddings are overdone, but some kind of fuss is necessary.

Fifteeen or so years after the wedding, the worry (if Jewish or mixed) is bar/bat mitzvah on a budget. Our children are not quite old enough yet, but we’ve been to a lot of bar mitzvahs and they are looming as a terror ahead. These mini-weddings are truly scary — the service; the luncheon; the evening party at a hotel or entertainment facility for 50-100 kids, parents and family friends with disc jockey and games; the Friday evening and Sunday brunch gatherings for the out-of-towners… I’m the RC part of our mixed marriage, so maybe it’s my sensibility that finds these mini-wedding celebrations disproportionate to the event. My wife is more or less appalled as well, but it seems to be “what is done.” (After the last one, my 9 yr old daughter started making an alarmingly long list of all the friends she wanted to come.) And it’s a weird lesson to welcome an adolescent into the great tradition of Jewish learning by putting on a childish commercial sort of party. Maybe these things are done differently in other parts of the country or in different circles. Reform Jews didn’t use to do them at all, and clearly (to my mind) don’t know how to today. Some kind of fuss is necessary, I would

agree, but what?

Please, if you print this don’t include my name — I don’t want to embarrass or insult any of my very nice friends or family whose bar

mtizvahs I’ve been to, and who might be reading. (One never knows.) Thanks.

WEDDING ON A BUDGET: Yay!!! Ignore the silly slam on Miss Manners–this is a good and necessary piece, via Dappled Things. The “wedding industry” sucks, sucks, sucks. Ginger Stampley agrees. The belief in the wedding as an immense pricey party a) keeps couples away from the altar (either because they really are saving up for the Big Day, or because he or she wants to use that as an excuse to keep from getting engaged for reals–I see a lot of this at the pregnancy center), b) coaxes couples into spending much, much more moolah than they can afford, c) therefore provokes an obsession with making sure that each pricey item is exactly right and that nobody gets in the way of the Perfect Wedding, d) therefore fills the pre-wedding atmosphere with tension, and e) makes the wedding all about the Bride’s Special Day!!! and not, you know, the marriage.

I don’t mind you coming here

Watching all my blogs…

As before, I’ll just link to the main site for Blogspot pages. I know, I know, but I don’t have the time to figure out how to move off Blogspot, so here I am….

Balkinization: Basic post on WMDs, but gets the job done.

L. Solum continues his defense of Really Really Strong Stare Decisis. I haven’t had time to read this yet but it is doubtless worth reading. I should reiterate that you can defend stare decisis but place it significantly lower in the hierarchy of judicial decisionmaking than Solum does–we’re not faced with a choice between Solum’s position and “D–n the precedents! Full speed ahead!”

Marriage Movement: “But today, when somebody says ‘family diversity,’ I hear ‘father absence.'” Yup.

Oxblog: Results from the “philosophical pick-up lines” contest. Some groaners, some laugh-out-loud bits. Fun stuff. My absolute favorite is the Sartre one, because it is soooo true to life.

CONFIRMATION WARS AND OTHER LAW STUFF: Well, Lawrence Solum has moved on from confirmation wars to defending really really strong stare decisis (no, that is not an inflammation–at least not always!–it’s a jurisprudential doctrine). Solum’s a very smart guy and a fun writer, and in general his site rocks. But I think some of what he says about stare decisis is off-base. Two issues: stability as the “primary purpose” of the judiciary–as long as we’re going for “primary purpose” I’d much rather say “applying the law to particular cases” or “resolving disputes about the meaning of the law” or, jumping up a rung on the purpose ladder, “guarding the Constitution” (yes, I know con law is not the majority of even the Supreme Court’s work, but as long as we’re talking primary purpose…). I think this stance strongly colors my response to Solum. I may write more about this later.

Second, Solum lauds really really strong stare decisis (hereafter, RRSSD) as a way of depoliticizing the judiciary. Buh? Doesn’t it actually raise the benefits of mucking around with the law (B-, C-, and D-level judging, in my formulation), because as long as you slide one political power play under the bar it’s law forevah? Seems to me that’s a huge, chocolatey, cream-on-top temptation for judges to Resolve The Difficult Issues for us little people.

(Ah, I see Sub Judice said this earlier. D’oh! Oh well, in this area it is not good to be too original!)

Solum will add Part Two to his defense of RRSSD tomorrow. I look forward to it–I always find his site thought-provoking and well worth my time.

Anyway, that’s not what I intended to talk about in this post, and, as I said before, I don’t feel like I understand the issues behind RRSSD very well, so perhaps I should leave well enough alone and stop there. What I actually wanted to talk about is Solum’s proposal for resolving the judicial-confirmation wars in the Senate. I initially totally misread his post, not sure why. Actually I think he really has a handle on what needs to happen, although I have some caveats and important quibbles. (Yes, I said “important quibbles.”)

Solum writes, “Both Democrats and Republicans seem to share a fundamental assumption about the current confirmation war. That fundamental assumption is that judging is inherently political in nature. If we concieve of the judiciary as a third political branch of government, with the authority to use the powers of judicial review and constitutional and statutory interpretation to achieve a political agenda, then control of the judicial branch is the ultimate political prize. The reason that neither party can trust the other is that the stakes are too high.”

So he proposes a “radical move”: “A truly radical move is one that would call the fundamental assumption into question. That is, a truly radical move would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate.”

Quibbles: 1) Obviously, I take issue with the precedent stuff, whatever, I’ve said what I have to say about that for today. Oh! except that it’s really pretty confusing to try to convince people that judging should be apolitical by using, as your example, the apolitical rewarding of political judging.

2) “judicial virtues rather than political ideology” misses the point. It’s about jurisprudential philosophy. Sure, let’s look at virtues too, that’s fine, but what I really want to know is whether someone believes in writing his favored policy positions into the Constitution. Not what those positions are (=political ideology), but how he believes they should be implemented.

3) This is the point I feel shakiest on, because it’s about the more horse-racing, poll-driven, politicking aspects of this issue: A solution isn’t going to come from the Senate. The pressure to grandstand is too high and the pressure on either side to cave is too low. If the ice breaks up in the confirmation freezeout, it will happen because the political stakes change, not because somebody decides we should all just get along. The political stakes will only change when the rhetorical climate changes. The rhetorical climate will only change when a lot of ordinary people get fired up about judicial oligarchy and/or getting judges confirmed. My personal suspicion is that two things will happen that will put the Senate in a position where it has to break the ice: a) A court somewhere will mandate same-sex marriage. Fur will fly. The courts will become a major political issue, much bigger than they are now.

b) A critical mass of pundits, legal theorists, and–ideally–judges will come to agree that both Bush v. Gore and Roe v. Wade were wrongly decided, and that their problems, while hardly identical, are related. (Coincidentally, that’s the view I set out in my vast A-B-C-D-judging post.) Pace Ampersand, I do not care whether you think Bush is worse than Roe or vice versa. To me, comparing their respective problems is a bit too apples-and-orangutans to be illuminating. All I want is agreement that both are bad. I think that this agreement may, just maybe, alleviate many of the left’s suspicions that textualists or whatever we want to call ’em are operating in bad faith (“You’re just promoting judicial restraint because you hate women and minorities!”).

All for now. As I say, I look forward to more on RRSSD from Solum.

So, back to the high and the low. One problem with Balkin’s distinction is that it assumes that political parties are the only players in “low” politics. What about interest groups? Why is ruling in the interests of the GOP horrible but ruling in the interests of the NRA is not? Why is sticking your guy into office by judicial fiat hideous, but sticking your favored, controversial policy into law by judicial fiat A-OK? I can easily see arguments that the former (what Balkin calls low politics) is worse than the latter (part of what he calls high politics), but I don’t think the latter is in any way respectable. To put it crassly, why bother pulling strings for your candidate when you can just write his party platform into the Constitution?

Lawrence Solum of the Legal Theory Blog has some initially confusing, but ultimately helpful stuff to say here, subdividing Balkin’s “low/high” divide into three levels. I’ll further sift the issue and say there are actually four levels:

A–jurisprudential theory, e.g. textualism, originalism, legal realism (maybe?? I’m not sure if that’s a jurisprudential theory or just a historical claim)–anyway, all the various interpretive theories judges turn to in order to figure out how to judge in general.

B–political philosophy, e.g. pro-life, feminist, socialist, environmentalist, multiculturalist, libertarian, whatnot.

C–policy outcome, e.g. legal abortion, racial preferences, concealed-carry laws, school vouchers, same-sex marriage.

D–party, e.g. Dems, Reps.

I fully admit that the interplay between B and A, especially, is troublesome for textualists. Judicial philosophy doesn’t come out of nowhere–it’s likely that the same underlying philosophy that sparks your A-level will also infuse your B-level beliefs. There’s also some overlap between B and C. But in general, and keeping in mind that there are few bright-line distinctions in law, I think my four levels help illuminate why I disagree with Balkin here (assuming I’m reading him right).

Let’s look at an example where people react in a way that Balkin’s low/high distinction doesn’t explain, but my four-level model does: pro-lifers’ response to Casey. See, Casey actually allowed for some restrictions on abortion (waiting periods, parental consent, informed-consent requirement). Minor pro-life victory, right? Incremental C-level gains?

Ha. Pro-lifers generally think Casey sucked like a–well, maybe I shouldn’t use suction metaphors here–anyway, we really can’t stand the decision. And the bit of the decision that comes up again and again in pro-life discussions isn’t C-level (whether abortions became easier or harder to obtain in Pennsylvania), or B-level (whether a fetus has rights), but A-level: the “mystery doctrine.” Quote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Justice Scalia’s dissent calls a different lousy aspect of the Casey decision “Nietzschean,” which strikes me as an adequate description of the thing he’s actually describing but a 100% accurate description of the “mystery doctrine.” (“Doctrine” is being used sardonically here, btw–it’s not a doctrine the way the public-figure doctrine is.) The “mystery doctrine” is one of three things: a) meaningless filler; b) self-serving rationalization of preexisting policy preferences; or c) an A-level jurisprudence that denies the possibility of all jurisprudence. Nice!

SOME SELECTIONS FROM THE ABOLITION OF MARRIAGE to whet your appetite. Stuff in brackets is from me. I’m quoting the more theoretical bits here, but the book is chock-full of examples, anecdotes, stats (and she’s careful with them, too, unlike most policy-popularizers), and moving personal stories, breathing life into the philosophical discussions. You can see, I hope, why Lingua Franca described Gallagher’s prose as “bodice-ripping”–that’s a compliment.

“[C]ohabitation thwarts as often as it satisfies the impulse to marry. Cohabitation comes wrapped in the language of commitment, but at its core it is about anxiety, commitment with fingers crossed. In this sense, like the hedonist ethic, cohabitation seeks to reduce sex, to make it more about the self and less about the union with the other–to keep the self more contained and therefore safer. Cohabitation is what lovers do when at least one of them does not dare to marry, to love without a net.”

“Regardless of the quality of the poetry it may inspire, romantic love, when it is primarily defined by the current emotional state of the lover, is always ultimately about the self, the lover, and the rights he earns by the intensity of his feelings. The lover does not care for the beloved so much as he draws inspiration from her; one might almost say he consumes the beloved, although always to the highest purpose, or at least the highest purpose that the self, trapped in itself, can know.”

“The therapeutic ideal, by reducing love and marriage to means of personal growth, makes both temporary by definition. It is a rational, utilitarian, practical ethic, deeply American and consumerist. It encourages us to view marriage as a disposable spiritual consumption item and to view our spouses as particularly valuable vehicles for personal growth, to be traded in when they have served their purpose.” [cf. “flexidoxy” in Bobos in Paradise, re “spiritual consumption items”; or, for more insight, Walker Percy’s Lost in the Cosmos: The Last Self-Help Book.]

“For the sake of our mental health and personal spiritual growth [these theorists claim], we ought to accept a world in which no one will make or keep a promise to anyone but himself.”

“Oedipus. Medea. Lear. Erotic conflicts within families are the oldest staple of tragedy. What is new is our American insistence on denying the tragedy, which we can do only by denying the conflict.”

“One reason we are reluctant to think deeply about family and marriage is that the family does not fit into the intellectual categories with which we feel most comfortable and whose metaphors come most easily to the tongue–especially the market metaphors that so permeate the American culture. Lacking the language to articulate the family relation, we try, futilely, to fit the family into the language of economics or management, blinding ourselves to who we are and how we actually live. …The market is the arena of the stranger.” [I’m no expert on this, but it seems to me that the biggest remaining problem with the Constitution and the constitutional thought that developed in response to it, a problem that continues to warp politics today, is that the Founders were still early enough in the Enlightenment to take the family more or less for granted. We’ve been conditioned to think about politics in contractarian, rationalist terms that do a lame job of describing, comprehending, and supporting family relations and the loves that ground society.]

“Lust takes but does not surrender.”

“[In marriage] we can come as close as human beings are capable of doing ‘justice’ to one human being: to know and to love him. To attempt to love just one other person the way God loves everyone. That is the seal, the aim, the substance of the marriage contract. Marriage is the incarnation of eros, the body of love. It is the psalms and the Song of Songs and it is the Crucifixion, or at least it is our aspiration to all of these things.”