I'd like to offer a few thoughts in response to the video proceedings of Is Gay Marriage Conservative?, a February 15 conference previewed on Jurisdynamics.
Let's begin by watching videos presenting the opposing perspectives of Dale Carpenter and Teresa Stanton Collett:
|Dale Carpenter||Teresa Stanton Collett|
The Traditionalist Case
[G]ay marriage is a conservative idea, though many self-described conservatives may be among the last to realize it. Marriage for gay couples, moreover, is conservative in the original and deepest sense of the word: it is traditionalist. Traditionalist conservatism, described most ably in the work of writers like Edmund Burke and Michael Oakeshott, emphasizes the need to respect longstanding practices and traditions; the need for continuity and stability in social institutions; the need to proceed incrementally where change is warranted; the need to be modest and cautious about the powers of reason; and the importance of basing any reform on experience rather than on abstract ideas about the good society.
I will first sketch a traditionalist argument against gay marriage rooted in the work of Burke and Oakeshott. Next, I will note some advances in positive knowledge that weaken traditionalist concerns about homosexuals and their relationships. From this base, I will make an affirmative case for marriage for gay Americans. The affirmative case points to both individualistic and communitarian benefits. I will then reconsider the traditionalist objections to gay marriage outlined previously and place the argument for gay marriage within the framework of traditionalist conservative thought. . . . The traditionalist, I conclude, should resist a “final” answer to gay marriage found in either constitutional solutions that take the form of amendments banning gay marriage or judicial declarations imposing it.
|Teresa Stanton Collett|
Marriage and Same-Sex Unions: Asking Too Little and Too Much
The cultural debate over whether the state should recognize same-sex unions as marriage is only a tiny, albeit a very important, part of a much larger debate surrounding the nature and meaning of marriage for American society. Both the broader and more narrow debates occur in the media, state and national legislatures, the courts, the schools, various faith communities, and perhaps most importantly (and most passionately) in our homes. Much of the passion that surrounds these debates arises from our expectations of what the law of marriage will do for and to us, yet we rarely step back and closely analyze these expectations. This presentation attempts to analyze some of the expectations held by advocates involved in the debate about the meaning and scope of marriage laws. Beginning with the common expectations of those who support and oppose recognition of same-sex unions, I consider whether our expectations are realistic in light of what we know about human nature and contemporary American culture. I then progress to the differing expectations of both advocates and opponents, exploring the basis for our difference. Ultimately I conclude that those involved in this debate (including myself) expect both too much and too little of the legal institution of marriage. It is my hope that clarifying these expectations will allow us to find some areas of common concern that warrant our collective action, while reducing the rancor over the true areas of disagreement.
The debate over same-sex marriage is fascinating because it exposes a fundamental contradiction in the definition of conservatism. Does conservatism represent a commitment to a process for societal decisionmaking, one that honors tradition, venerates established institutions, and places the burden of persuasion on novel propositions? Or, alternatively, does conservatism represent a commitment to certain substantive values established at some point in history, in this instance the proposition that marriage as an institution permits only one structure — namely, one woman and one man?
The idea of jurisdynamics, as I have defined it, is bound to have some tension with both species of conservatism. Insofar as process-oriented conservatism (which strikes me as the heart of Dale Carpenter's case for same-sex marriage) permits more room for legal change, even on a modest and incremental basis, I find it more appealing at the margin than a substantive commitment to particular values. To be sure, neither the age nor the durability of a social custom or norm is dispositive in a jurisdynamic view of the law. But the process-oriented traditionalist seems more open to arguments favoring change, as long as novelty bears the burden of persuasion, whereas a substantive commitment to a particular bundle of values deemed "conservative" offers no obvious avenue for a collective social decision to change course.
And on those grounds, I give Dale Carpenter the upper hand relative to those who oppose same-sex marriage for putatively conservative reasons.