In the same-sex marriage arguments at the Supreme Court the other day (see the Washington Post’s coverage, here), the discussion naturally touched upon the wisdom, or folly, of discarding by government fiat a sacred tradition that is at least as old as civilization itself, and universal to every society that has ever existed.
Left and Right, just as naturally, disagree about the importance of this question. An oft-cited metaphor for the conservative view is known as “Chesterton’s Fence”. It comes from G.K. Chesterton’s book The Thing:
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
I refer readers also to a post of our own from July of 2013, the subject of which was the diametrically different attitudes of conservatives and liberals toward tradition generally. An excerpt:
To the conservative, traditions arise naturally from the workings of human nature, as part of the ontogeny and organic development of societies. They are not the result of scientific planning or sociological theorizing ”” and like biological species themselves, they only come into view in retrospect. They are, in a sense, part of the “extended phenotype’ of our species and its various subgroups, as languages are; and just as languages do, they naturally adapt to, and come to represent, those things that actually matter to the various human groups from which they arise. (Many have been, at least up till now, more or less universal.) In this way they contain a great deal of deeply-buried knowledge about the optimal functioning of the human social organism, often for reasons, and in ways, that themselves need not be explicitly represented in the organism’s consciousness. Because of this, disrupting them will always have unknowable consequences ”” and so, at least, tradition justifies respect for its embodied wisdom, and caution as regards casual tampering.
To those on the Left, traditions are artifacts. Rather than being organic outgrowths and aspects of human nature itself, they are human creations; they are social technology, whose only purpose is to control and manipulate human behavior. In this view, human “nature’ hardly exists at all, and traditions are wholly external things; indeed almost everything about human behavior and human life is external to the individual. This means that to mold human beings, or human societies, into any desirable configuration is simply a matter of discarding traditions, and inventing new ones, until we obtain the correct result. Because of this, tradition justifies very little indeed.
As we see all around us, these views of the world are not particularly compatible, and cannot easily coexist, at least within any given society.
15 Comments
There are certain matters in regard to which I lean right. I consider myself a fiscal conservative: don’t spend beyond your means, keep government regulation to a minimum, etc. I’m also a foreign-policy conservative–fairly hawkish, and a believer in the notion that every country has the right to act in its own self-interest, to the extent (as libertarians might say) that those actions don’t infringe on other countries’ self-interests. I’m not a fan of affirmative action, restrictive gun laws, or the top-down regulation of what I eat. Government should stay the hell out of my gut.
There are areas in which I skew more to the left. Artistic expression, for example: I have a high tolerance for the pervy, the bizarre, and the plain old fucked-up. And then there’s gay marriage. Full disclosure: one of my brothers is gay, and he’s getting married this coming October. I’m the officiant. So I have a very personal stake in this debate, and find myself disappointed when people with whom I normally agree and get along start talking about gay marriage in something like the language of Dr. Vallicella, to wit–”gay” is an alienans adjective when appended to marriage. Bullshit, I say.
I understand and appreciate the argument from tradition, and even subscribe to it to a certain extent. But as many before me have already noted, traditions and institutions like slavery also arise organically, and are nearly as old as humanity. Does that make slavery legitimate? Should slavery be respected, and dealt with only incrementally, because it’s the venerable product of the wisdom of the masses? (Marriage, like slavery, is both a tradition and an institution.) The argument from tradition isn’t a convincing one for me.
I like how the US Constitution’s amendments tend to handle significant matters that affect many or all of the people. Generally speaking, the amendments to the Constitution tend to prohibit some form of exclusivity, constraint, or boundary:
1. The 1st Amendment prohibits the making of laws respecting the establishment of religion, free speech, a free press, free assembly, and petitioning to redress grievances.
2. The 8th Amendment prohibits excessive fines, as well as punishments of the cruel and unusual sort.
3. The 13th Amendment abolishes slavery.
4. The 15th Amendment prohibits the denial of the right to vote to certain sectors of the population (race/color).
5. The 19th Amendment prohibits restrictions on the right to vote based on sex.
6. The 26th Amendment prohibits denial of the right to vote to anyone 18 or older.
The running theme in the Constitution is the striking-down of restrictions. It is very much a freedom-affirming document. An amendment that restricted the right to marry to only one man and one woman would run very much against the grain, tenor, spirit (whatever) of the amendments already in place. If anything, an amendment prohibiting an over-restrictive definition of marriage would be more consistent with the current content of the Constitution.
I’ve heard time and again that conservatives aren’t against change, per se: they’re against hasty, thoughtless change. I submit that there’s been plenty of thought and discussion–much of it civil and intelligent–when it comes to gay marriage and, further, that a major change of the gradual, incremental kind has long been under way in the collective American psyche regarding the legitimacy of gay marriage. These facts ought to be enough to satisfy the conservative criteria of incremental and considered change.
I used to think the issue of gay marriage could be solved locally, perhaps through some sort of federalist principle. That doesn’t make sense, though: if my brother and his beau drive across the US, will they be considered married in California, unmarried in Texas, married in New York, etc.? I now think that a marriage-defining constitutional amendment is probably a better way to go, but the definition of marriage would need to be consistent with the restriction-smashing spirit of previous amendments.
Here’s my definition, from a recent blog post:
Marriage is a lifetime commitment between and/or among two or more consenting, non-related adults.
This allows for straight marriage, gay marriage, one-to-one marriage, “circle” marriages involving seven or eight people, polygamy, polyandry, or whatever other committed, loving arrangements adults with free will are capable of inventing. The definition does have a restrictive side: no children, no animals, no inanimate objects, and no incest–only adults with mature free wills.
I don’t think my brother is contributing to the erosion of American society by marrying his beau, and I’m not bringing down the country by presiding over the wedding. My brother and his future husband will most likely just keep to themselves; they have no plans to bash others over the head with their lifestyle. They simply want the chance to live, love, and be left alone.
Besides, if conservatives tend to prefer less government involvement and not more, shouldn’t they be for the idea that grownups can make their own decisions about how to live their lives? My amendment would affirm that principle; an amendment restricting marriage to a heterosexual/procreative definition would not. How does giving more rights and freedom to a sector of the population oppress the rest of us?
There’s more I can say about this topic, including a response to the specious argument that gay men have the same right to marry women as hetero men do (this is like saying a man with a deadly milk allergy has the same right to drink milk as non-allergic men do… so no, Mr. Smith: I’m sorry, but you can’t drink anything other than milk here).
Kevin,
I truly appreciate what you have to say about this contentious issue. And without passing judgment on any of your opinions about it, though I will add that I agree with some of your opinions, I think you have overlooked what I believe to be the real sticking point between the opposing views.
To wit, if some guy wants to have a gay marital-like relationship with another guy to “live, love, and be left alone”, I believe he should already have that right under the Constitution. But that is not what SSM is really about, is it? It’s about having such a relationship sanctioned by law such that all the laws of the land having to do with marriage, divorce, property rights, adoption, child visitation, inheritance, life insurance, etc., will legally apply to SSM as they currently apply to marriage as currently defined. That is decidedly not the same as wanting the right to “live, love, and be left alone”.
Thanks, Kevin, for this thoughtful response, which articulates very clearly the hard libertarian (as distinct from the traditional-conservative) position.
I can’t give it the reply it deserves right now, but will certainly do so as soon as I can.
Henry,
You’re right: I didn’t address that issue in the above comment. Had I droned on longer, I would have, though, because, to me at least, marriage in the modern American context is pretty much meaningless if it doesn’t come with the legal advantages appertaining thereto.
All,
Bill Keezer (who also comments here) emailed me the following thoughts to be shared as a comment–presumably on my own blog, but I thought they’d be apropos here, too:
Kevin,
I think what needs to be recognized is that the union of two people legally and religiously are two different things that have been conflated by our history. This is one area where the separation of church and state has not occurred and should. I think it is scandalous that a minister is an ex officio government officer when performing a marriage.
The states’ interest is in the equitable settlement of separations, an even playing field on the initiation of a union, and a concern for the welfare of any children associated with the union. Calling the union of two homosexuals a marriage is a slap in the face to most Christians, and I think it violates freedom of religion in a subtle way. I am strongly behind civil unions for EVERYONE, and let marriage be whatever and wherever the couple wants it.
I would disagree with Bill’s notion that there’s a subtle violation of freedom of religion. A codified redefinition of marriage wouldn’t change a thing, practically speaking, for devout Christians who also believe that marriage should be between one man and one woman. Take hospital visitations: if gay couples are given this right, the hospitals won’t suddenly be flooded with gays who shove hetero spouses out of the way in their rush to be by their paramours’ side. There simply aren’t enough homosexuals for crowding ever to become an issue. Upshot: when it comes to hospital visitations, nothing changes for hetero couples. And I’d say the same goes for other marriage-related issues.
“This means that to mold human beings, or human societies, into any desirable configuration is simply a matter of discarding traditions, and inventing new ones, until we obtain the correct result. Because of this, tradition justifies very little indeed.” The conservative-traditionalist thrives very well in the non disrupted society. The Leftist by his nature it seems can not thrive unless he is constantly discarding and reworking that which has proven successful for thousands of years. He lives to be miserable and can’t be happy with any of his new creations because some in his camp will never be satisfied and so off they go tearing down and reconfiguring. All he needs is opposition and that is the fuel that will drive him.
Kevin, first I’d like to make clear that there are two separate issues here:
1) Does the balance of complex social and moral arguments to be considered here make it clear that our society should expand the definition of “marriage” to include same-sex unions?
2) Is a ruling by the Supreme Court the best way to accomplish this?
I am going to leave aside the more difficult questions of moral evolution and the long-term social effects of adopting same-sex marriage, and focus on the narrower issue of how I think the Court should rule on the matter. (Indeed, that’s all that any of my recent posts on the topic have touched on.)
My own opinion is that the choice is best left to the States. About this, you wrote:
The Constitution was designed to make sure that the Federal government existed only to perform those functions necessary to the administration of a federation as a federation. In particular, the Tenth Amendment reserves to the States and the people “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States.” The problem nowadays is that the idea of the nation as a compact of sovereign states has become so eroded that we seem to expect that laws should all be the same everywhere. But if my wife and I are, say, gun collectors, or want to grow marijuana, the laws of the various states will affect our choice of which state to live in. (Massachusetts, for example, has particularly strict gun laws, and refuses to recognize permits issued by any other state.) I don’t see why the states are to be denied this right when it comes to marriage.
Your reading of the Constitution is that its purpose is to restrict the power of the Federal government, and I agree. So why is it correct for the Supreme Court to override the right of the various states to define marriage as their people see fit?
You continued:
But here is where I find your argument hard to follow: having rejected “some sort of federalist principle” as a solution to the problem, you call for a Constitutional amendment. But the process of amending the Constitution is one of the strongest pillars of Constitutional federalism: just to propose such amendments requires two-thirds majorities of the States’ representatives in both houses of Congress, or a two-thirds majority of a convention consisting of at least two-thirds of all the State legislatures; to ratify the amendment requires, in addition, the direct consent of three-fourths of the States themselves.
And what an amendment you propose! It permits “straight marriage, gay marriage, one-to-one marriage, “circle” marriages involving seven or eight people, polygamy, polyandry, or whatever other committed, loving arrangements adults with free will are capable of inventing.”
You are certainly getting way out in front of America’s “evolution” here. But some things, apparently, are still too much for you:
Why, you old fuddy-duddy! How are you going to feel ten or fifteen years from now, when SCOTUS is hearing arguments about all of this? Where is your limiting principle? Why shouldn’t sixty-year-old Joe, and his thirty-year-old son Jeff, who have a beautiful, loving, and deeply rewarding sexual relationship, be allowed to marry? Why shouldn’t my lover and I be forbidden the spiritual rewards of a marital commitment just because I am a man and she is a horse? (It can’t be about “free will”, because if I can make my horse carry me around on her back at my pleasure, the importance of her consent is already off the table.)
You wrote:
I certainly agree with you that conservatives, even reactionary types like me, “aren’t against change, per se: they’re against hasty, thoughtless change”. But I disagree with you that a “major change of the gradual, incremental kind has long been under way in the collective American psyche regarding the legitimacy of gay marriage”. I’d say, rather, that the rate of change, at least in the collective (and very curiously synchronized) ideology of academia, the major media, and the Democratic Party, has been astonishingly rapid — so much so that it has left great swathes of the “American psyche” behind, with what now amounts to outright hostility. The President himself was opposed to same-sex marriage as recently as three years ago, and Hillary Clinton, now an eager proponent of SSM, had this to say about marriage just a few years earlier:
Moreover, if the “collective American psyche” actually has reversed itself on the question of what marriage is, or is about to complete such an “evolution”, then there should be no reason why the law can’t be changed by way of the normal democratic, legislative process. Such an approach, though it may involve a few more years of patience on the part of SSM advocates, would be far less polarizing and divisive, at a time when American politics (and, in my opinion, the American nation itself) is already tearing itself to pieces. When SCOTUS rules on this momentous case, it will probably be one man — Anthony Kennedy — who makes the difference. Wouldn’t it be better to let this work itself out a little more slowly and organically?
Finally, you object to my point that what is at issue here is not the right to marry, but the right to define marriage itself. But your milk-drinking example fails to convince, I’m afraid. The fact that Jack can’t drink milk is unfortunate, but does not mean that it is therefore in the State’s interest to make exceptions to its laws. What if all that Jack liked to drink was baby’s blood?
Imagine Jim, who would like to be a police officer. Jim was born with only one arm. Unfortunately for Jim, though, the people of his state have decided that it is in society’s best interests to have policemen pass a physical exam that requires the ability to use both hands. Should they be forced against their will to drop this proviso, in order to make Jim happy? If you believe they should, shouldn’t you persuade them first, after which they will agree of their own volition that the policy ought to change? And if you can’t persuade them, are you so certain that you are right, and they are wrong, that you are willing just to compel them to change it, with all the resentment that will cause?
(As regards Bill Vallicella’s description of “gay” being an alienans adjective when applied to “marriage”: as I am sure he would remind you, “Bullshit!” isn’t an argument.)
Imagine a society that considered hiking a sacred activity, and had given it a special place in their laws and customs. Now imagine Jerry, a person born with weak ankles, who cannot hike, but loves to swim. He wishes with all his heart to engage in the sacred activity, though. Is he justified in arguing that, despite the universal and ancient understanding of what “hiking” means, the the essential aspect of ‘hiking’ is actually the use of one’s limbs for propulsion, and so swimming is really just a too-long-forbidden version of “hiking”? This would not be about his “right to hike”. It would be a dispute about the definition of “hiking”. And that is what’s happening here.
What about her pleasure, you chauvinist? :)
I have a ribbed saddle.
Ha! Good one.
Malcolm and Henry…naughty, naughty boys.
Whitewall,
I resemble that remark.
Incidentally, Mal, “on my back” rather than “on her back” sounds a bit odd (N.B., I used “odd” NOT the Q-word).
Right you are, Henry. Now corrected.
I am reminded of the famous dictum, attributed to Daniel Patrick Moynihan:
Analogously, I would propose the following variant:
Malcolm,
Too many issues to address succinctly here, so I’ll likely reply on my own blog. Thanks.