Conservatives and Gay Marriage
Yesterday’s California ruling is generating a predictable set of responses. I’d like to suggest a different conservative response. Or at least a different conservative political response at the federal level.
It seems to me that conservative objections to gay marriage fall into two buckets: (1) it’s just wrong, or (2) it will ultimately lead to undesirable social outcomes.
It’s easy for cosmopolitan elites to dismiss the first objection snidely by putting on a fake southern accent, but as I have argued before, it’s not so simple. Ultimately, any view of morality must inevitably rely on axioms which are based on intuition, and not subject to rational debate.
The political question, however, is what should we do when 100 million or more Americans are on either side of a passionately-felt moral debate. Increasingly, this is the case with gay marriage. According to polls, about 55% of Americans oppose gay marriage, but about 55% of Americans support civil unions. The American population is pretty much split down the middle on these issues; though it’s obvious to everybody that public opinion has been moving in favor of gay rights. Opposition to gay marriage has declined to 55% from 65% in 1996. It’s hard to find data going back much further than that, as the idea of gay marriage seemed so bizarre in, say, 1960, that nobody thought of doing a poll on it. Growing acceptance of gays is partially driven by some adults changing their minds, and partially by the increasing proportion of the population that has been raised in an environment that is more benign for homosexuals. 75% of 18 – 29 year-olds support either gay marriage or civil unions, while this is true for only about 45% of those over 65.
George Will once said that for those in his then 26 year-old daughter’s age cohort, the status of being gay was about as morally problematic as the status of being left-handed. Among 26-year-old artists in Williamsburg Brooklyn, this is likely a majority view; among 26-year-old homeschoolers in Plano, Texas, likely not. Support for civil unions is more like 65% in the East and West, and more like 45 – 50% in the South and Midwest. This geographic distribution of attitudes opens the way to a practical approach to finding a working compromise. I think we should view federalism, and more generally, subsidiarity, as the preferred political approach to this problem. If individual conservatives want to make a persuasive case to change minds about homosexuality, more power to them, but in the meantime we should embrace the idea of different states and localities behaving differently.
If subsidiarity is a working compromise designed to accommodate differing moral views, I think that it is a positive good in addressing the second type of objection: that gay marriage will ultimately lead to undesirable social outcomes. I am skeptical that gay marriage is part of a process of social breakdown, but lots of people disagree with me. We have differing theories. I accept that I might be wrong, or at minimum wrong for some times or places. It seems to me that the best way to answer this question is not to yell at each other, or even to see who can write the most elegant and persuasive books, but to let different groups of people voluntarily try different approaches and see what actually happens.
Americans have a healthy aversion to telling other people how to live. Only about 30% of Americans support a constitutional amendment banning gay marriage. Why don’t we try letting people live how they want to live, and let others try to impose uniform national rules on a heterogeneous population of 300 million people?
( cross-posted at The Corner )
I find the notion of axioms inapt in this context. First, it’s extremely doubtful that moral thought can be viewed as a rule governed process (why I should be writing a term paper on just this subject, right now instead of commenting!), at least if those are to be consciously accessible rules capable of succinct formulation in natural language. Second, the idea of axioms gives us a bad view of what moral argument consists in—hence your claim that because we don’t have axioms, there’s not room for rational argument—this is only true on a restrictive notion of what moral argument would consist in (Michael Bérubé‘s “What’s Liberal About the Liberal Arts” has a very interesting discussion of just this point, even if his examples are a bit far from ordinary political discourse). The trick is to make sense of rational debate without an axiomatic view of reason. Your notion of subsidiarity might be seen as a rational response to the underlying disagreement, one which you can go some way towards justifying to the competing parties.
— Justin · May 16, 03:05 PM · #
Gays make up 3% of the population, and there is a lot of evidence that (prisons, the navy, and boarding schools not withstanding) you are either homosexual or you aren’t, it’s all genetic. Since gays tend to be drawn to larger Metropolitan areas, I think middle-America can suck it up and tolerate gay marriage, even on the rare occasion when it happens in a smaller, more religiously conservative area.
— Mark · May 16, 04:28 PM · #
It might be the case that religious conservatives would be willing to buy off on the live-and-let-live thing if they felt relatively secure that it went both ways (so to speak). As additional rights connected to sexual orientation have been legislated or affirmed judicially, so too have efforts to make its associated norms (relative indifference between or among sexual orientations) go far beyond the political sphere. Whether it’s a Methodist church being forced to allow same-sex ceremonies in its facility (in NJ) or a photographer being forced to take pictures at a same-sex wedding or any number of similar sorts of cases, religious conservatives rightly think that the move toward public political affirmation of homosexual relationships will be accompanied by coercive attempts to require that they (or their children) affirm the goodness of those relationships as well. I’m not a supporter of gay marriage, but I don’t think it would be as socially and politically divisive as it might otherwise be if the live-and-let-live truly went both ways.
— Michael Simpson · May 16, 05:10 PM · #
There are some legal problems to a localized solution, the biggest being that the states have historically recognized other states’ marriages and divorces, and there isn’t really a good way for a marriage to be legal in Massachusetts but not in Alabama. But that’s probably solvable at the end of the day.
The issue that has people worked up most right now is courts versus legislatures and/or popular initiatives. I personally would be a lot happier if California passed gay marriage by the legislative or initiative process (I would even vote for it!) than by judicial action, although for all I know, it’s a solid judicial decision.
— J Mann · May 16, 05:59 PM · #
Even when it serves your point not at all, you still are compelled to invoke imaginary “cosmopolitan elites”? This is some sort of pathology.
— matt · May 16, 06:01 PM · #
How exactly would the proposed solution — gay marriage being legalized in some jurisdictions but not in others — work in practice? When slavery was legal in some states but not in others, slaveholders argued that, since slavery was legal in the states in which they bought their slaves, they had the right to take their slaves into free states and keep them enslaved, and in practice they were generally able to do so. Slaves who escaped to free states were not freed by living where slavery was illegal; instead, when they were captured they were returned to their owners in slave states. Slavery and legal support for slavery could not be confined to slave states.
When gay marriage is legalized in some jurisdictions, it similarly cannot be confined to those jurisdictions. Gays who travel to California to marry and who return to their home states, where gay marriage is illegal, and gay Californians who marry there, and then move to other states, will demand full legal recognition of their marriages. How will those jurisdictions be able to resist the demands? Won’t they be forced to recognize gay marriages that are contracted in jurisdictions where those marriages were legal?
Just as slavery forced all states including free states to enforce slave laws, won’t legalized gay marriage in some states force all states to recognize gay marriages, even if they are illegal there?
— Gary Imhoff · May 16, 06:34 PM · #
RE: Gary Imhoff
I could be wrong, but I think culturally conservative legislatures have taken the “full faith and credit clause” argument into account by passing statewide bans on gay marriage that explicitly forbid recognition of out-of-state gay unions. I’m not sure if these prohibitions are constitutionally legitimate, however.
— Will · May 16, 06:57 PM · #
Will/Gary – I do think the legal cross-state part of this is a big issue, and though I’m very sympathetic to a subsidiarity-based solution, I wonder how it can be done. Both (a) marriages are recognized by the federal government as valid or not (could a gay couple claim to be married for tax purposes?) and (b) cross state-travel and transactions. For adoption purposes, will the child have two parents when crossing state-lines? (One could imagine a heart attack from one parent during an airplane layover, and a bitter custody battle where the non-marriage state says the child has no parent.)
But I don’t know much about the law – any lawyers out there who could work up an optimal solution for this?
Also – I know many people who are for gay rights who are neither elites nor snide.
— Mike · May 16, 08:03 PM · #
Mike –
I agree that the potential for legal entanglements related to state-recognized gay marriage is immense. Two points come to mind:
1.) Despite my ideological affinity for a decentralized solution a la Manzi, I’m not sure if it’s constitutionally legitimate for one state to simply refuse to recognize another state’s legally granted marriage license.
2.) Even if we assume a decentralized solution is constitutionally feasible, it would take an immense amount of restraint on both sides of the aisle to make it work. Given your hypothetical custody battle scenario, I could easily imagine an opportunistic local politician in a state that doesn’t recognize gay adoption refusing to hand the child over to the deceased parent’s next of kin. Could you imagine a scenario in which gay parents voluntarily stop making road trips or flight layovers in certain states to avoid prosecution? I find it difficult to imagine anti- and pro-gay activists embracing social restraint in such highly-charged circumstances.
— Will · May 16, 09:46 PM · #
Will / Mike / Gary:
I think that all of these complexities and many more would arise. To me, they seem quite analogous to the controversies like Dred Scott that arose in regard to slavery in the first half of the 19th century (not super helpful to my argument, I recognize, but I doubt this is a big enough issue to start a civil war). There would be no perfect solution. But consider the alternative: whoever can get 50% + 1 vote at the national level simply tells about 150 million Americans who disagree to shut up and obey.
The point I was trying to make to conservatives is that it is better on the merits and the politics to be for subsidiarity as the preferred solution, and be dragged into practical compromises with that ideal, rather than being the “gay marriage is bad for everyone, everyhewre, forever because we say so” guys.
— Jim Manzi · May 17, 02:26 AM · #
Mr. Manzi, how exactly is an unworkable, temporary, and finally illusory subsidiarist compromise better than duking it out in national politics? Even if conservatives lose a straight culture war, how is that different than the two-step defeat of losing after a false compromise?
I’d be all for a subsidiarist solution if I thought that our constitutional and cultural fabric could sustain it. But unfortunately, Lincoln scotched the first one (though, of course, for good resons at the time), and postwar liberalism scotched the second. Like it or not, we don’t live in a country in which such a solution will be allowed—particularly by the left, which stands to benefit from imposing its cultural norms upon the Midwest and South from its position of comparative economic and cultural power, and which has had no compunction about doing so in the past.
— Ethan C. · May 20, 01:07 AM · #
Your suggestion makes a lot of sense, even if in a somewhat trivial way. However, in this society, certain very fundamental rights are regulated by federal law: for instance, the right to bring your spouse or fiancé from abroad in order to live together in the U.S. It is a very basic right that is taken away from gays, bringing misery to a large number of them. To wit, you can marry your same-sex partner in Canada or Spain but there is no legal way for your partner at all to move with you to the U.S. if she or he is a foreign national. In this case, the law’s deliberate cruelty cannot be remedied by the federalist approach you propose.
— odin Paren · May 30, 09:33 AM · #
A poll this week shows that California & Utah both favor gay marriage. Marriage is a basic civil right that should be attainable by all Americans if they choose. For those who are uncomfortable with gay marriage check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue: www.OUTTAKEonline.com
— Charlotte · May 30, 01:09 PM · #