The Nanny State

I don’t believe I had ever heard the expression “nanny state” until a few months ago, and now I can’t stop finding it on-line and in the press. Referring sarcastically to a society in which a well-intentioned government watches over its citizenry somewhat in the style of an overprotective nanny hovering over the children in her charge and supervising every last one of their steps lest it become a misstep, the phrase is never meant as a compliment. As someone with long-standing libertarian tendencies, thus as someone who specifically does not relish the thought of having the government test the temperature of his bath before being issued a permit to get into the tub, the phrase is resonant with me in any number of different ways. And being told by Mayor Bloomberg how big a soda I may or may not buy when I venture into a 7-11 in one of the five boroughs is really the very least of it.

As a rabbi, I am often expected to be delighted when the government enacts a law or alters a regulation in a way that is unexpected consonant with Jewish law or practice.  The recent decision of the United States Postal Service no longer to deliver mail on Saturday, thus precluding the likelihood of all sorts of Shabbat-prohibited responses to what one might receive in the mail, is a good example of that kind of expectation.  The reality is that I’m pleased the USPS has crossed that particular Rubicon because I think it is a good idea for the USPS not to collapse into insolvency and that single step is predicted to save the service something like two billion dollars annually. But I neither want nor wish for the Postal Service to assist me in promoting Shabbat observance by not delivering the mail on Saturdays because I want Jewish people to embrace the commandments as part of a general willingness to hew to the ordinances that constitute the eternal covenant between God and the Jewish people, not because the government has inadvertently tricked them into not paying their bills on Saturdays after the mail comes.

In other words, I want the government to watch over its own affairs and leave the citizenry free to pursue its destiny according to its own lights even if the decision some specific citizen might make to live a certain way or to undertake a certain kind of activity might seem unworthy or inexplicable—but not dangerous—to others.  Nor does it seem inconsistent to me to believe that one of the key responsibilities of any government is to prevent citizens from infringing upon each other’s rights, but also to believe that living free includes the right to behave idiosyncratically or even at cross purposes with what others perceive as one’s own best interests. When John Stuart Mill wrote a century-and-a-half ago in his essay “On Liberty,” that “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others,” I think he had it exactly right. It should make no difference, therefore, if some action a mentally healthy, adult citizen is contemplating seems unappealing, outlandish, or immoral to others as long as no one but the citizen him or herself will be affected by it.

You probably are expecting me to follow that thought into the national discussion about gun control in the wake of President Obama’s visits to Connecticut and Colorado this week to press Congress for new legislation aimed at making the public safe from gun violence. I think my readers all know that I have strong (if slightly conflicted) feelings on that issue, but I am actually more interested today in writing about my reaction to the Supreme Court’s two days of deliberation about issues related to the future of same-sex marriage in our country in light of Mill’s remark about the purpose of government.

A lot of what was said could have been scripted in advance, but I personally found myself returning again and again to Mill’s words and concluding, almost to my own surprise, that the issue has a lot more to do with the rights of citizens to live out their lives according to their own lights without undue interference from even the most well-meaning government than anything specifically to do with gay people or the reasonableness of homosexual individuals choosing to share their lives with members of their own gender.  People do not need to be protected from themselves…only from others whose activities will likely impinge on their wellbeing or their civil rights. And that principle applies, or should apply, to all citizens regardless of where they fall out on the sexual orientation spectrum.

When Justice Kagan, for example, asked Charles J. Cooper, one of the lawyers representing opponents of same-sex marriage in California, how exactly, in his mind, the existence of same-sex marriage impacts negatively on the rights of heterosexual couples to marry and flourish, his answer, unconvincing and to my mind more than slightly peculiar, was that permitting same-sex marriages will “refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” Had anyone asked me that question a few days earlier, I personally would have responded that it has always seemed to me that the point of marriage is specifically to speak to the needs and desires of adult couples.  Justice Kagan’s response suggested to me that she would have answered similarly. So did Justice Breyer’s. I think, in fact, that it would come as a huge surprise to most Americans to learn that the point of marriage is to get people to procreate and that the establishment of dignified homes characterized by maturity, monogamy, commitment, and trust is merely a happy side-effect, one no doubt beneficial to the public weal but ultimately ancillary to the “real” point of getting married. And, just to play the devil’s advocate, who says that gay couples cannot produce or parent children? This is, after all, the twenty-first century!

The government could, of course, solve its problem simply by withdrawing from the debate and declaring marriage a religious issue for religious groups to figure out for themselves and on their own. And if marriage conveyed no specific benefit to married couples other than the pleasure of marriage itself, then that would be an entirely reasonable development. For millennia, in fact, that is exactly how the world viewed marriage: as a religious institution with which the government had nothing formal to do at all.  In Great Britain, for example, the Marriage Act of 1753, popularly called Lord Hardwicke’s Marriage Act, for the first time required couples who wished to be recognized by the state as married to have formal wedding ceremonies, but the ceremonies in question were, by law, to be conducted in an Anglican church or under the religious auspices of Quaker or Jewish clergy. (Everybody else was apparently out of luck.) It was only at the very end of the eighteenth century, in fact, that Napoleon brought the concept of civil marriage to France, then subsequently to the rest of Europe. In our country, civil marriage has always been an option—but that is, I believe, specifically because marriage in our country brings along with it certain advantages that the constitutional separation of church and state makes it impossible for the government to extend only to couples who are prepared to marry in religious ceremonies.  I think that makes sense—if the civil government is offering a civil benefit to the citizenry, it can hardly make that benefit dependent on that couples willingness to affiliate religiously!  And with that thought we come to the crux of the matter as it now seems to me: the government needs not to interfere in the lives of citizens who wish to live together and enjoy the benefits of marriage merely because their choice of spouse is uncharacteristic of the majority. The only justification for doing so, as Mills wrote in his day and as Justice Kagan suggested last week in her remarks, would be the argument that permitting such unions infringes in some important and undesirable way on the civil rights of other citizens. If that were the case, then not permitting them would make sense. But even the lawyer arguing before the court against same-sex marriages in California could not come up with a cogent argument in that direction.

My own thinking on this issue has evolved dramatically over the years. Once, and not at all so long ago, I would have considered the whole concept of same-sex marriage to be unimaginable. So would have most Americans. Indeed, the number of citizens in favor of the government offering the option of marriage to same-sex couples almost doubled from 1996 to 2012 and will, I think, only grow as the years pass given that support for the principle (in some guise or another) is at 58% of American adults, but at 81% if only citizens between the ages of 18 and 29 are included in the poll. What surprises me, though, is how the issue has morphed in my mind from one essentially “about” gay people into something far more about the government’s obligation to leave the citizenry be when the possibility of harm to others is non-existent and to refrain from distinguishing between recognizable groups within society when there is no obvious gain to society in doing so. Not giving gay people wedding licenses is not like not giving blind people driver’s licenses!

As a rabbi, I have all sorts of strong feelings about the way Jewish people should live their lives in accordance with divine law. (I have, after all, devoted almost my entire professional life to encouraging adherence to the terms of the covenant that binds the God of Israel with the men and women of the House of Israel.) What has changed for me, therefore, has nothing to do with the specific way I hope Jewish people of every stripe, certainly including gay people, retain their sense of fidelity to the commandments and conduct themselves accordingly. What has changed, on the other hand, is my understanding of the issue before the court as a specifically civil matter and my sense that the government should leave people free to pursue their own destinies without discriminating pointlessly between groups of citizens…unless they can prove categorically that there’s method in their madness.  That was the challenge laid down in the court last week. And it was, in my opinion, a challenge left unmet.