You need to read Jim Antle’s piece in TAC this morning, discussing why conservatives are at a political disadvantage in our therapeutic culture. This, especially:
A day after the Supreme Court struck down a key provision of the Defense of Marriage Act, the Senate advanced the Gang of Eight’s “comprehensive immigration reform” bill. The work of the Court’s narrow majority looks more likely to endure than the Senate’s lopsided one, but momentum is cutting against conservatives in both cases.
These two seemingly unrelated issues remind us that the most difficult word in politics is “no.” When a large group of Americans wants something, even views the attainment of that thing as important to their identity, they will get it eventually. Their political opponents will come to find denying them exhausting.
This is not always a bad thing. Justice has often been done only after victimized groups have worked long and hard to pursue it. Neither the demolition of Jim Crow nor women’s suffrage would have come about absent such efforts. “We shall overcome.”
Nevertheless, this tendency does become problematic when it makes it difficult to defend the interests of society as a whole against the interests of particular individuals or groups, evoking James Madison’s concerns about factions. Just as for neoconservatives every tin pot dictator is always Hitler in 1938, for liberals every social issue is always Selma.
This reminds me of a point Ross Douthat made in a terrific 2006 TAC symposium pondering the meaning of “left” and “right” in contemporary America. Douthat wrote:
The picture is further complicated by the fact that because conservatism only really exists to say “no” to whatever liberalism asks for next, it fights nearly all its battles on its enemy’s terrain and rarely comes close to articulating a coherent set of values of its own. Liberalism has science and progress to pursue—and ultimately immortality, the real goal but also the one that rarely dares to speak its name—whereas conservatives have … well, a host of goals, most of them in tension with one another. Neoconservatives want to return us to the New Deal era; Claremont Instituters want to revive the spirit of the Founding; Jacksonians want to rescue American nationalism from the one-worlders and post-patriots; agrarians and Crunchy Cons pine for a lost Jeffersonian or Chestertonian arcadia. Some conservatives think that liberalism-the-political-philosophy can be saved from liberalism-the-Baconian-project and that modernity can be rescued from its utopian temptation; others join Alasdair MacIntyre in thinking that the hour is far too late for that, and we should withdraw into our homes and monasteries and prepare to guard the permanent things through a long Dark Age.
Liberals, on the other hand, dream the same dream and envision the same destination, even if they disagree on exactly how to get there. It’s the dream of Thomas Friedman as well as Karl Marx, as old as Babel and as young as the South Korean cloners. It whispered to us in Eden, and it whispers to us now: ye shall be as gods. And no conservative dream, in the 400 years from Francis Bacon until now, has proven strong enough to stand in its way.
Having said all that, I want to embark upon the thankless and pointless task of explaining why many conservatives fear the consequences of the Supreme Court jurisprudence that has given us, most recently, the overturning of DOMA. It all goes back to an infamous passage in Justice Kennedy’s majority opinion in Planned Parenthood vs. Casey — a passage that epitomizes the modern worldview, and crystallizes what separates conservatism from liberalism and libertarianism. In the 2003 Lawrence decision overturning sodomy laws (and the earlier Bowers decision upholding them), Justice Anthony Kennedy, writing for the majority, said:
The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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.” Ibid. [Emphasis mine. — RD]
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.
In his powerful Lawrence dissent, Justice Scalia wrote that :
As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (“ ‘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’ ”): That “casts some doubt” upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.
If, as the majority contends in Lawrence, a prohibition on sodomy is an unconstitutional violation of the right to privacy because of“an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex”, then where is the rational basis for laws prohibiting all kinds of behavior related to sex that is now against the law? Scalia goes on:
This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
… This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Ten years later, in his dissent on the DOMA ruling, Scalia returned to the theme. I’m going to link to this Atlantic digest of the most quotable parts, including:
It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
Scalia’s point, in less charged language, is what it has always been: that if the majority in Casey, and in Lawrence, was right about sexual autonomy being central to liberty, then there is no logical reason why same-sex marriage isn’t a constitutional right. The only thing standing in the way of this conclusion, says Scalia, is the will of the SCOTUS majority, which, he suggests, is bound only by a fear of going too far.
Conservatives have had a number of reasons for opposing SSM, some better than others. The unforeseen consequences of accepting SSM is one that I have found most persuasive — that in order to accommodate the needs and wishes of same-sex couples, we have to go further than we should, and will reap the whirlwind.
Consider this recent Jillian Keenan essay from Slate, arguing that the next step in expanding freedom is legalizing polygamy. She writes:
While the Supreme Court and the rest of us are all focused on the human right of marriage equality, let’s not forget that the fight doesn’t end with same-sex marriage. We need to legalize polygamy, too. Legalized polygamy in the United States is the constitutional, feminist, and sex-positive choice. More importantly, it would actually help protect, empower, and strengthen women, children, and families.
It’s also hard to argue with the constitutional freedom of religious expression that legalized polygamy would preserve. Most polygamous families are motivated by religious faith, such as fundamentalist Mormonism or Islam, and as long as all parties involved are adults, legally able to sign marriage contracts, there is no constitutional reason why they shouldn’t be able to express that faith in their marriages. Legalized polygamous marriage would also be good for immigrant families, some of whom have legally polygamous marriages in their home countries that get ripped apart during the immigration process. (It’s impossible to estimate exactly how many polygamous families live here, since they live their religious and sexual identities in secret. Academics suggest there are 50,000 to 100,000 people engaged in Muslim polygamy in the U.S., and there are thousands of fundamentalist Mormon polygamist families as well.)
Finally, prohibiting polygamy on “feminist” grounds—that these marriages are inherently degrading to the women involved—is misguided. The case for polygamy is, in fact, a feminist one and shows women the respect we deserve. Here’s the thing: As women, we really can make our own choices. We just might choose things people don’t like. If a woman wants to marry a man, that’s great. If she wants to marry another woman, that’s great too. If she wants to marry a hipster, well—I suppose that’s the price of freedom.
And if she wants to marry a man with three other wives, that’s her damn choice. [Emphasis in the original — RD]
The core of the matter:
The definition of marriage is plastic. Just like heterosexual marriage is no better or worse than homosexual marriage, marriage between two consenting adults is not inherently more or less “correct” than marriage among three (or four, or six) consenting adults. Though polygamists are a minority—a tiny minority, in fact—freedom has no value unless it extends to even the smallest and most marginalized groups among us. So let’s fight for marriage equality until it extends to every same-sex couple in the United States—and then let’s keep fighting. We’re not done yet.
No, certainly not. This is what worries marriage traditionalists: that the Supreme Court’s jurisprudence logically leads to the conclusion that the state may not interfere in the autonomous sexual choices of consenting adults, therefore polygamists have a constitutional right to have their arrangements recognized in law as valid marriages. If not, why not? What is the compelling reason to deny recognition to polygamists? What right does the state have to pass judgment on their choices?
I’m not asking rhetorically. I have never heard a satisfying response to these questions. SSM advocates say that those who believe marriage can only be between a man and a woman don’t have a right to impose their beliefs on others. If that is true, then by what authority do those who believe marriage can only exist between two partners tell those who believe marriage can be among three or more partners that they are wrong? To take it out of the realm of sexuality: in 1954, when the Court was considering Brown v. Board Of Education, had the Board of Ed been able to produce concrete evidence that desegregation would lead to a host of social problems, would that have been sufficient to have caused the Court to change it’s ruling and defend “separate but equal”? Or is racial discrimination in the guise of “separate but equal” such a profound violation of constitutional rights that whatever deleterious consequences may flow from its voiding, they are better than violating the fundamental rights of the black minority? I would say the latter. A future Court may well decide the same thing for polygamous families — that whatever potential harm critics foresee in declaring a constitutional right to polygamy is outweighed by the fundamental right to have their autonomous choice in the matter of marriage validated by the state.
In the end, there is no true neutral standard. By the standard SCOTUS set up in Casey, and further defined in Lawrence, denying marriage rights to polygamists seems arbitrary. Mind you, if the Court had left it entirely up to legislatures, states could have conferred marriage privileges on same-sex couples without opening the door in constitutional law for polygamous marriages. But by finding in the constitutional right to privacy grounds to legitimize same-sex marriage, the Court raises the question: Why not polygamy?
The law is a teacher. Aside from questions of constitutionality, the Court’s jurisprudence codifies a model of sex and sexuality that social conservatives see as destabilizing. If sex has no intrinsic meaning, no teleology, and only have the meaning that freely choosing individuals impose on it; and if marriage is whatever we choose to call it, then there is little reason for anyone to choose to limit their sexual freedom, and childbearing, to a binding institution called marriage. If you want to see what a social disaster the loss of the traditional family as the keystone of society is, look to the US black community, and, increasingly, to working-class American whites.
I return to Jim Antle’s statement that it is “difficult to defend the interests of society as a whole against the interests of particular individuals or groups” in our political culture. As Harvard sociologist Carle C. Zimmerman argued from a secular point of view, the loss of traditional marriage as a binding social ideal has consequences.