Thursday, March 13, 2008

Same-sex marriage and the meaning of conservatism

 Grooms' rings
Brides kissing 

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 CarpenterTeresa Stanton Collett
Dale Carpenter
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.


Blogger Chairm said...

Carpenter is not a process-conservative, at least on this subject, as revealed in his many remarks regarding marriage and related issues at the blog, Volokh Conspiracy.

No process will change the basis for the social institution of marriage in any human society.

1. Integration of the sexes.

2. Contingency for responsible procreation.

3. The combination of these central features which, as a combination, are the hub in the wheel from which the secondary and teritiary aspects of marriage radiate like spokes in a wheel.

A social institution is a coherent whole, hence point 3 which is vital.

These points arise from the two-sexed nature of humankind, the both-sexed nature of human generativity, and the both-sexed nature of human community.

These features are given. They are not socially constructed and are not something that can be abolished by a human process, conservative or otherwise.

Society, through its governing authorities, might recognize, privilege, and prefer marriage's core but it might also neglect that core.

A merger of SSM with marriage would do the latter. That end is neither conservative nor just. And no apparently just means can justify an unjust end.

On the other hand, the SSM campaign is corruptive of the democratic, deliberative, and legal process of change in society. Just look at Massachusetts as an example of that much. No unjust means can be justified by a just end, much less transform an unjust end into justice.

On substance and on process, the push for the SSM merger is not conservative.

3/14/2008 12:59 PM  
Blogger Ward said...

"These points arise from the two-sexed nature of humankind, the both-sexed nature of human generativity, and the both-sexed nature of human community.

These features are given. They are not socially constructed and are not something that can be abolished by a human process, conservative or otherwise."

This analysis ignores the FACT of homosexuality in nature. It ignores the significance of that naturally occurring homosexuality. And finally, it ignores modern notions of love and commitment, which place other values ahead of an ability to (potentially) reproduce.

"On the other hand, the SSM campaign is corruptive of the democratic, deliberative, and legal process of change in society. Just look at Massachusetts as an example of that much. No unjust means can be justified by a just end, much less transform an unjust end into justice."

Look, the USA was set up to work a certain way. That way involves, among other things, three branches of government, which are independent of one another; representative (rather than pure) democracy; and protections for minorities against "tyranny of the majority." If you don't like these fundamental aspects of American government, then either lobby fore some (rather radical) amendments to the US Constitution, or go live somewhere else. There's really nothing else to say to you about this ...

3/19/2008 12:27 PM  
Anonymous Anonymous said...

Ward, the SSM campaign is not about marriage, at all.

It is about gay identity politics.

Identity politics is not a good basis for 1) justice, 2) self-governance, nor 3) protection against tyranny.

As for the "FACT of homosexuality" it is irrelevant to the core of marriage. My comment describes marriage, not the substitution for marriage that the SSM campaign promotes.

The marriage law is silent on homosexuality. There is no test for sexual orientation, much less for socio-political identification. Them's the facts.

Even if you look at the most celebrated court victory of the SSM campaign, you will find that the Goodridge court in Massachusetts failed to produce a majority of justices who'd decide on the basis of sexual orientation discrimination. In fact, a majority of 4-3 explicitly rejected that basis.

On one hand, to choose a nonmarital arrangement (Such as one of the two types which have as their chief feature same-sex attraction) is a liberty exercised, not a right denied. Freedom is not infringed.

On the othe rhand, mposing a change in marriage recognition such that one (small) group's identity filter is used to block out the core of marriage, well, that's tyranny and injustice rolled-up together.

If a nonmarital alternative type of relationship has special merit, then, it can be treated on that basis. What is its special merit? Is it gaycentric, for example, and is it this that requires abolition of the man-woman criterion of marriage? Howso?

Then you can explain to me the basis of the Goodridge majority opinion. And explain how the judicial branch legislated the imposition of the SSM merger. And how the deliberative process was not exemplified in the process that thwarted the marriage amendment proposals prior to Goodridge, in the immediate aftermath of it, and subsequently. Even the high court said such obstructionism was unconstitutional yet that approach prevailed. In what? Upholding a court opinion based on ... what, again?

As for marriage, you cited love and commitment. Do you mean that society distinguishes between the conjugal relationship type and other types of relationships on those two criterion?

Please elaborate both in terms of the contrast you had highlighted regarding process conservativsm and substantive values-based conservatism.

You raised the subject. You ought to have a little more to say on the substantive issues as well as the process issues that I have raised in my response to your blogpost.

You are adamant so it is only fair for you to explain what convinced you. Surely you'd have thought this through and have ready answers. How much effort could it take to expain how SSM fits your views of process/substantive conservatism?


3/21/2008 10:53 PM  
Blogger Chairm said...

My apologies to both Ward and Jim.

The original blogpost, of course, was written by Jim, not Ward.

To Jim, may I please redirected the question about how SSM fits your view of process and susbstantive conservativem conservatism. Thanks.

To Ward, if the choice is to defend our republican form of self-governance (yes, against the SSM campaign's corruptive influence), or be chased from the public square, then, I'll stick around and encourage you and others to show good faith when engaging int he deliberative process -- whether here or in general around the country.

3/21/2008 11:03 PM  

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