Friday, June 28, 2013

Two Arguments about Gay Marriage

It appears the talking point of the day in the National Review/Weekly Standard archipelago is that the majority decision of the Supreme Court in U.S. v. Windsor-- the one which struck down DOMA-- unfairly characterizes opponents of gay marriage as bigots and that, regardless of the merits of the gay marriage question generally, the issue should have been decided by the democratic process rather than judicial "fiat."  Both points might deserve a hearing, but coming from certain quarters they reflect a shameless selective amnesia.



First of all, do we really need to stoop to marshaling evidence of homophobia in the ranks of the anti-gay marriage movement?  How about this piece of not-so-ancient history?  Surely it's a mere relic from a more benighted age which opponents of gay marriage have now utterly transcended-- in the two years since it occurred.  This does not mean that everyone in the anti- category on gay marriage approves of this sort of naked appeal to fear and prejudice, but it is galling to see people with long records of homophobia suddenly crying foul at being accused of harboring anti-gay views-- and equally suddenly arguing that they make no claim as to the merits of gay marriage tout court but only to the appropriate legal means of addressing it as an issue.

I am not in favor of making blanket condemnations of gay marriage opponents as bigots, but it is no good to be on record as a bigot and view yourself as an injured party when you are described as one.  Please spare me the mock surprise, Justice Scalia, at being accused of a desire to "disparage and injure" gay couples, or at the insinuation that your motives relate to anything other than the legal  question of the the role of the judiciary, when in your dissent in Lawrence v. Texas, only ten ago, you wrote:

"Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. [...] It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as 'discrimination' which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream'[, etc.]"

Justice Scalia may legitimately think that it is proper to "disparage" a set of behaviors he regards as deserving of "moral opprobrium," and to "injure" the capacity of people to engage in them, but he cannot come out ten years later aghast at the suggestion he ever wished to do either.  Unless of course he had in the course of those ten years apologized for his previous stance and publicly affirmed the moral equality of gay couples or something like that.  That'll be the day-- and while we're at it, let's have Charles Krauthammer become a pacifist and John Yoo a major donor to Amnesty International.

I won't dwell upon the inconsistency of Scalia inveighing against judicial activism the same week he helped to gut the Voting Rights Act.  As Amy Davidson remarks, this is such a routine sort of inconsistency it isn't even interesting.   

Ok, ok, so these individual inconsistencies only really tell us about the intellectual integrity of the people making them, not about the real issues-- besides, some of the more respectable opponents of gay marriage have, to their credit, already noted and condemned some of them.  So, supposing the two arguments alluded to at the start of this post came from more reputable quarters, what could be said in response to them?  

With respect to the problem of judicial activism, I have little to add to what hordes of liberal bloggers have already written.  In general, I regard gay marriage as a sufficiently significant civil rights issue that the judiciary is correct to assume its traditional role of defending minority rights from majoritarian decision-making with respect to it.  I think the issue is also made dramatically simpler in this case by the fact that the people DOMA directly harmed were those already legally married by their state governments who were then singled out to bear a special burden not placed on their heterosexual neighbors.  Finally, the federalism issue should clinch it if nothing else did so.  Even some National Review writers have pointed out that the Court's decision essentially defers judgment on marriage issues to the individual states, which one might have expected conservatives to support.

The second argument, however, has less to do with legal roles and more with the substance of political disagreements over gay marriage, so I want to treat it at greater length, as this sort of thing is more interesting to me (though not more important).  In short, the argument insists that opposition to gay marriage need not be motivated by bigotry or homophobia (as the Court decision implies, if in somewhat more measured language).  It argues in essence that everyone in the "anti-" camp ought not to be tarred with the same brush.

Ok, so ignoring the fact that many opponents of gay marriage have sufficiently tarred themselves without any help from the "pro-" camp, I do think that there's a legitimate point there, and that there is a type of conservative argument sometimes made about "unintended consequences" which, though I do not accept it, is not necessarily or exclusively motivated by bigotry.

It is certainly true, as I see it, that for someone to regard gay marriage as itself wrong can only be justified on the basis of anti-gay sentiment.  Now, such sentiments can be held with greater or lesser intensity, and not everyone who bears a trace of them is animated by a burning hatred of difference.  However, I don't see what logical case could be made to suggest that gay marriage is evil in itself unless one believes that gay relationships are somehow less real, or less loving, or serve different functions than straight ones, which regardless of the emotional intensity with which such beliefs are held, seem to all be definitionally "anti-gay."  Perhaps someone could argue in good faith that the function of gay relationships can be "different" without being "worse," but if they and straight relationships are really morally equal, why keep them separate?  In any case, there's always a range of positions which could conceivably be held in good faith, but which would require such a level of self-delusion as to defeat themselves on other grounds.  It seems to me that to believe that gay relationships could be recognized by some form other than marriage while enjoying equivalent moral status in the eyes of the public is in this category, alongside other arguments of the "separate but equal" type.

Ok, but suppose you argue on a mixture of Burkean and consequentialist grounds that, while denying the benefits of federally-recognized marriage to gay couples imposes an unfair cost on those couples, it is worthwhile in the long run because rejiggering the marriage institution may erode it in unintended and unforeseen ways.  I think Liberals should be more aware of the existence of these sorts of arguments and argue against them with greater respect for the emotions involved.  In the ministry, one thing that becomes immediately clear to the would-be pastor is that the most politically radical members of the congregation can become the most hard-bitten reactionaries when the issue affects them directly rather than in the abstract-- like when the lectern is to be moved two feet to the right or a new sign put up in front of the church.  The reason is not that anyone views a displaced lectern or a new sign as itself evil-- but when people love something, like a church, they fear that the slightest change will lead to more changes, and that eventually, values will be altered which are fundamental and irreplaceable-- the same values which made them love the place to begin with.  In pleading for change in a ministerial setting, therefore, the task is not to depict such concerns as absurd or worthless, but to demonstrate that a proposed alteration will not entail giving up what is really essential and valuable in the older institutions.  There is an even more pressing need for this sensitivity on the national scale.  Liberals and pro-gay marriage conservatives should devote themselves not primarily to the task of castigating their opponents for crude bigotry (though sometimes that's necessary-- see above), but to showing that the fundamental values of marriage and family are preserved and strengthened rather than undermined by placing both on a more egalitarian footing.

I want to make one final point about "preservation" here before closing.  It may seem to some Burkeans that, while it is certainly possible that gay marriage may strengthen the relevant institutions rather than undermining them, these institutions are of such profound social significance that it is just not worth the risk to try anything different.  When the values are fundamental enough, even the most compelling reasons should not persuade us to mess around with what we do not fully understand.

On this point, I just want to say that there's a type of change that conservatives simply cannot undo, and that is a new extension of moral consistency.  Now that we have seen that gays and lesbians live in relationships with one another that are fundamentally of the same value as straight relationships, it cannot be unseen.  The Burkean cannot roll back the clock and live in a world in which no one was aware of this fact.  All she can do, therefore, is either to deny it and preach bigotry against homosexuals-- in short, to make the ugly and irreversible leap from being a traditionalist conservative to being a reactionary-- or to argue that it is worth placing an unjust burden on same-sex couples for the sake of a larger objective, in which case she is sacrificing gay and lesbian individuals who have only this one life to lead on the altar of an abstraction-- something Burkeans are supposed to be against.  Either way, the battle for preservation is already lost before it has even begun.  The would-be Burkean has become something else entirely, and she has lost the very values she set out to save.  

I personally was raised by a heterosexual married couple.  The values I find in marriage and family are therefore tied up for me at a sentimental level with that particular family structure, because that is my own limited experience.  But I would find it a grave betrayal of those same values I was raised with to enlist them to deny family and marriage to others.  That is why I can consider myself both a liberal and a preservationist with regard to what I value most.

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