We’re hearing lots of reports that sentiment at the recent CPAC (Conervative Political Action Conference), and elsewhere, tended to favor legalizing same-sex marriage or at least abandoning opposition to it. George Will characterized the event as providing evidence for the “rise of the libertarian strand of Republicanism.”
Here’s the way Senator Rob Portman characterized it when he announced his change of heart on the subject, one that I don’t think was calculated for political benefit:
British Prime Minister David Cameron has said he supports allowing gay couples to marry because he is a conservative, not in spite of it. I feel the same way. We conservatives believe in personal liberty and minimal government interference in people’s lives. We also consider the family unit to be the fundamental building block of society. We should encourage people to make long-term commitments to each other and build families, so as to foster strong, stable communities and promote personal responsibility.
Let’s start with his statement about personal liberty and minimal government interference. Most would call that one of the hallmarks of American conservatism, but I say: not so fast. It all depends upon why you favor these things. Perhaps you think that an individual–Thomas Hobbes’s “ordinary husbandman”–is the best judge of what’s good for himself or herself. If it’s a matter of mere preferences, there’s no reason to think that anyone else’s preferences ought to be substituted for my own. And whatever superiority there might be in another’s reason or judgment doesn’t compensate for the difference in preferences. The fact that your IQ is higher than mine gives you no basis for saying that you may substitute your preference for rocky road over mine for mint chocolate chip.
So far, so good, but the devil is in the details. There are still two questions–at least–to consider here. The most obvious one is how we distinguish between matters of personal preference and those matters of the common good which require some sort of common judgment. I might add to this also the issue of how we arrive at a common judgment: Is it by collecting private preferences or some process of rational deliberation, in which it’s conceivable to consider relevant differences of authority or judgment? The former is not obviously conservative, the latter may or may not be.
A second consideration here is the status of reason. Is the distrust of government based upon a distrust of human reason generally or upon a claim of the sufficiency of individual reason? Confidence in the sovereign sufficiency of human reason to guide one’s life isn’t exactly conservative.
Perhaps a better model for the role of reasonable conservatism is the Kass-Mansfield brief in Hollingsworth v. Perry (the California Proposition 8 case). Consider, for example, this statement:
There could conceivably come a time when supporters of traditional marriage are compelled by scientific evidence to acknowledge that same-sex marriage is not harmful to children or to society at large. That day is not here, and there is not the slightest reason to think it is imminent. It is no less possible that scientific evidence will eventually show that redefining marriage to encompass unions of samesex couples does have harmful effects on our society and its children. That day is also not yet here, but there is no basis for this or any other court to conclude that it will never arrive. Now and for the foreseeable future, claims that science provides support for constitutionalizing a right to same-sex marriage must necessarily rest on ideology.
The statement doesn’t rest upon a doctrinaire view of small government and large personal freedom. It doesn’t insist upon the unassailable authority of tradition. It doesn’t run ahead of the evidence in the name of some abstract ideology. Rather, it insists upon the scrupulous and careful weighing of the evidence, as it becomes available.
What’s more, the Kass-Mansfield brief offers a somewhat different version of the relevant common good than does Sen. Portman. The latter relies upon the following abstraction–the “family unit” is the “fundamental building block [is there another kind?] of society.” For him, the family is the locus of “long-term commitments” that “foster strong, stable communities and promote personal responsibility.” He says nothing about children. I have nothing against contractual commitments (which, by the way, assume as well as promote personal responsibility). But the abstraction of Sen. Portman’s argument leads us in two directions that it would be hard to regard as conservative.
The first is that it treats all long-term commitments as equally contributing to community and responsibility, thereby providing us no basis for distinguishing between two-person and multi-person marriages. (For the recond, I doubt he intends this, but he is a prisoner of his own abstractions.) The second is that the language of commitment is, in a sense, subjective. I enter into commitments voluntarily, as it pleases me. The language of obligation, which he doesn’t use, implies responsibilities that aren’t necessarily voluntary, such as moral laws that oblige one whether one consents or not. Such language ought to roll trippingly off the tongues of conservatives.
By focusing on the contested terrain of the effect of same-sex marriage on the well-being of children, Kass and Mansfield call our attention to obligations that are in no sense of the term voluntary. Whether we like it or not, children deserve our concern and care; we are obliged to care for and about them. They provide reasons for entering into “long-term commitments” that aren’t simply a matter of personal preference. I recognize that there are all sorts of “reasons” for paying attention to the connection between child-rearing and family formation, but, as they say, the heart has its own reasons and doesn’t really require social science.
We can, and should, reason all we want about these matters, but we have to recognize that at the center of our concern ought to be a consideration that isn’t in the first instance “rational.” Leon Kass and Harvey C. Mansfield, Jr. get it. So should all the others who call themselves conservative.
March 19th, 2013 | 3:55 pm
I have never read a better argument against Gay Marriage from a conservative, very well said. Although, as a libertarian, I do believe in the supremacy of freedom to contract. We all share the hope that “the scrupulous and careful weighing of the evidence” will give us the final answer about what’s the best course. But my question is: why should freedom of contract be impinged in the meantime?
March 19th, 2013 | 4:03 pm
With all due respect, where is the evidence, scientific or not, that same sex marriage IS harmful to children or society?
March 19th, 2013 | 5:05 pm
Travis, is marriage merely a contract? should the law not privilege some relationships on account of their inherent ability to benefit society — namely, through the production of children?
March 19th, 2013 | 9:11 pm
I want to thank you, and all who have published their articles about same-sex marriage here on First Things. After largely ignoring this topic, it has recently loomed largely, and First Things provides, as ever, the best, most thoughtful consideration of the topic.
March 19th, 2013 | 9:15 pm
Jason,
Read the Kass-Mansfield brief, which treats the available scant evidence quite thoroughly and honestly. I quote their central claim in the post. The question is whether we should embark upon a large-scale, judicially mandated experiment on the basis of either the available evidence or an ideologically inspired hope. If onl;y we could agree that the principal societal interest in marriage is the welfare of our most vulnerable fellow citizens….
March 19th, 2013 | 10:51 pm
There is no right to do the impossible. All the libertarians in the world cannot give anyone the “right” to make night into day by calling it so. The arguments that conservatism (really libertarianism, but let’s waive that) means one should support same-sex marriage bypass the central question: Can marriage mean anything one decides it means? Where does anyone get the right to decide that marriage means something no culture, ever defined it as — and where does he get the right to say everyone else must decide that too?
March 20th, 2013 | 12:43 am
The question is whether we should embark upon a large-scale, judicially mandated experiment on the basis of either the available evidence or an ideologically inspired hope.
To those who believe same-sex marriage is a right, this argument is pointless and irrelevant. When the Bill of Rights was drawn up, nobody suggested a slew of studies ought to be done as to whether the enumerated rights were good for society. A great many people believe that no-fault divorce is not good for society. Did anyone recommend that the social sciences study it for decades before states signed it into law? Social change is not put on hold in democracies until social and behavioral scientists can complete their studies. It is preposterous to suggest it should be. Also, since same-sex marriage confers no rights to bear or raise children that unmarried same-sex couples don’t already have, what is the point of saying no to same-sex marriage out of concern for children?
And as I have noted before, the intent of those who invoke the “right” of children to be raised by their biological parents is to protect children who don’t exist by trying to see to it that they are never conceived! By what principle do people claim the right to say that if children are born and raised in certain situations, they should never even be conceived . . . until social scientists give their stamp of approval?
March 20th, 2013 | 12:48 am
Note the article On Gay Unions, a Pragmatist Before He Was a Pope in the New York Times about Pope Francis’s attempt to promote civil unions as a compromise in Argentina as an alternative to same-sex marriage.
March 20th, 2013 | 1:04 am
There is no right to do the impossible.
Gail Finke,
But “the impossible” has been done in nine states in the USA and eleven other countries around the world. (I believe Thomas Aquinas taught that if something happens, it must be conceded that it is possible.) To the best of my knowledge, nobody has ever made a legal argument that same-sex marriage is impossible, and governments don’t have the right to permit the impossible. It seems to me it is taken for granted even by those waging legal battles against same-sex marriage that government does indeed have the authority to “redefine” marriage.
March 20th, 2013 | 1:21 am
Regarding the Senator reliance of the family as the source of order in the state, this from Aristotle’s Politics may be pertinent:
Without the City, the rules in the household and the village actually become destructive to the human beings, for just like the relationship between the growth of the whole and that of the parts, where the latter is beneficial only in relation to the former (without respect to which it can be cancerous and harm the body). So too is the relationship between the rules in the household/village and that in the City. If the unequal rules in the household do not aim at the rule among equals in the City, the inferior work produced by them will turn humans into Cyclops with a natural bent toward war.
March 20th, 2013 | 5:53 am
Travis: I should think in would give a libertarian pause that to achieve such a radical redefinition of marriage in order to allow gays to marry REQUIRES an intervention of the state. Marriage is an institution which has pre-existed the state. Where is the authority of the state to change what it never created in the first place? This is statism at its worst.
March 20th, 2013 | 6:26 am
Jack, thanks for the comment! I believe that from a legal point of view, yes, marriage is “merely” a contract. Of course, I do not intend to denigrate the spiritual meaning of heterosexual marriage or its social benefits. I do not think it is necessary or appropriate for the state to “privilege” any type of relationship, as (1) I believe the institutions of heterosexual marriage and the nuclear family will continue just fine without the state’s interference, and (2) I do not trust the state to regulate these relationships.
Gail: I would say the question is not “can marriage mean anything one decides it means?” The answer is clearly “no.” The more applicable question is whether the state can or should interfere with freedom of contract to preserve the social-cultural definition of marriage. I also think the answer to that is “no,” but of course there are many who reasonably disagree.
March 20th, 2013 | 6:53 am
Jason,
Since you said “scientific or not” I’ll ask you to ponder why black Americans oppose the redefinition of marriage in such large numbers. They see proponents of redefinition arguing that having both a father and a mother is not necessary to a child’s well-being, and having already lived through the horrors of that social experiment they realize, better than any other demographic, where this all leads.
March 20th, 2013 | 9:17 am
What massive black American opposition to same-sex marriage are you talking about?
http://www.washingtonpost.com/politics/after-president-obamas-announcement-opposition-to-gay-marriage-hits-record-low/2012/05/22/gIQAlAYRjU_story.html?hpid=z3
“Overall, 53 percent of Americans say gay marriage should be legal, hitting a high mark in support while showing a dramatic turnaround from just six years ago, when just 36 percent thought it should be legal. Thirty-nine percent, a new low, say gay marriage should be illegal.
The poll also finds that 59 percent of African Americans say they support same-sex marriage, up from an average of 41 percent in polls leading up to Obama’s announcement of his new position on the matter. Though statistically significant, it is a tentative result because of the relatively small sample of black voters in the poll.”
If anything, there may be above-average black support for same-sex marriage.
March 20th, 2013 | 9:37 am
Mick, I’m mainly proposing that DOMA be scrapped, as it is a legislative act that I think not only puts contracts on unequal footing, but infringes to an extent on states’ rights. So to me, this is about undoing legislation.
Gian, “the relationship between the growth of the whole and that of the parts, where the latter is beneficial only in relation to the former” is something which I think describes the market (true social cooperation) more than the state, which impedes social cooperation by intruding into the market. I do not think the quote supports state action to direct individual activities. But, then again, as a libertarian I am of course a sub-par classicist. So I lack the context to discuss Aristotle.
March 20th, 2013 | 9:50 am
Travis and the like-minded: 1.) The state already places limits on the “freedom to contract”. Like it or not, that will never change nor should it. (For one obvious example, one cannot “contract” with another individual to place oneself into slavery–even for a short period of time). To hold up
“freedom to contract” as some sort of trump card in these discussions is not quite as persuasive as you might think.
2.) If you “do not trust the state to regulate these relationships, it would make more sense to legally recognize none than to regulate all. Get the state out of the marriage business altogether. Provide no tax advantages to the married over the unmarried. Make intimate relationships a wholly private concern.
3.) One of the blind spots libertarians share among each other is that in the social sphere there are only two actors: the individual and the state. There is little written in libertarian literature about the free institutions which stand between and shield the lone person against an overwhelmingly powerful and government. To the conservative eye, it is obvious that the state and its allies have been slowly and persistently dismantling and rendering ineffectual these free institutions by attacks of a thousand cuts. Marriage has been one of these institutions. Against this, libertarians provide no practical defense save “the rule of law” and the ability to sue in courts. Odd those libertarians profess no trust in the state; yet they do trust the state to enforce the law according to the libertarian sense of “contract”. And as we all know, no government has ever broken its own laws even when it was in its interest to do so.
The other side of this coin is that libertarians have little appreciation for what the impact “social experiments” can be on the existing “social ecology”. Sure. Allowing gay marriages won’t…
March 20th, 2013 | 10:46 am
I’ll ask you to ponder why black Americans oppose the redefinition of marriage in such large numbers.
Douglas Johnson,
Rather than give a number of links, let me just suggest you do a Google search for African Americans gay marriage. Suffice it to say that polls in the second half of 2012 (including exit polls from the November election) show a majority of blacks now support same-sex marriage.
. . . and having already lived through the horrors of that social experiment . . .
It is unclear to me in what sense the extremely low marriage rate and the extremely high out-of-wedlock birthrate are the result of a “social experiment.” I would certainly agree that blacks have been victimized in any number of ways and that the state of marriage and childbirth among them is in part a result of this victimization. But it is also the result of millions of individual choices. And in any case, however we assign responsibility, it certainly does not mean that the opinions of African Americans on same-sex marriage should be given special weight.
March 20th, 2013 | 11:38 am
Mick, I’ll try to move quickly here, (1) just because some limits exist (or should exist), that does not mean each individual limitation is justified. (2) Yes, I would like for the state to get out of the marriage business altogether. I think there may be lots of places we would agree that the state’s intrusions on freedom of contract are not justifiable (for example, mandatory unionization). You would certainly not accept your own argument in defense of that legislation. (3) “in the social sphere there are only two actors: the individual and the state.” What does this mean? What about families? Churches? Businesses? Collections of individuals, like the state. Right? “the state and its allies have been slowly and persistently dismantling and rendering ineffectual… free institutions by attacks of a thousand cuts.” Yes, that is correct. That is why libertarians oppose all expansions of state power. You seem to be arguing that libertarians are failing to use the state to defend against the state?
March 20th, 2013 | 12:01 pm
Travis,
You and I disagree on the question of whether marriage is doing “just fine”. In particular, I am concerned about the low fertility rate, and in particular about the number of children born outside marriage, to women who have no interest in marriage, which generally (but not always) creates more costs to society, as these children have an overwhelming probability of being poor, among other dysfunctions. These costs are more than just financial.
Obviously, homosexual marriage is not the cause of this. The question for me is whether the radical revision of the meaning of marriage, which began at least half a century ago, and has led to this sorry state of affairs, really ought to be entrusted to continue. I would argue that the privileges accorded to stable, heterosexual relationships ought to be strengthened.
So, we may have to agree to disagree.
March 20th, 2013 | 1:45 pm
The problem with marriage as contract is that it is unique in that it creates individuals unable to consent rationally to a contract and are adversly harmed by it: children. It’s impossible to “get the state out of the marriage business” due to this, and children remain in this uneasy quasi-chattel status. With SSM and IVF, state regulation must increase, not decrease, because there are three parents: love/bio, love/non-bio, donor/bio.
Essentially, we are creating step-parent families from the start, with all their downsides. Even the longing a child may have for a missing or “real” parent. While many step-parents are wonderful, I don’t think anyone would say this is preferrable an outcome for a child, and the best stepfamilies are medicinal more than natural. The argument for kids harm from SSM is this.
March 20th, 2013 | 7:22 pm
Jack Perry:
“In particular, I am concerned about the low fertility rate”
The fertility rate of the United States has been stable in the 1.8-2.0 range for the past four decades. Internationally, that’s among the highest fertility rates of any developed country; France and the United Kingdom are higher but TFRs in those countries are more volatile.
Countries which want to have high fertility rates are going to have to accommodate a diversity of family structures, including same-sex couples for the purposes of this discussion but more broadly including women in different relationship types who fill non-traditional economic roles. Countries that don’t, like Germany or better yet Japan, get to have low fertility rates. Squaring the circle to produce countries where lots of children are born in traditional families does not work.
March 20th, 2013 | 11:03 pm
Randy,
http://en.wikipedia.org/wiki/Total_fertility_rate#United_States paints a different picture. Besides the actual numbers, I’d point to the comment, However, the fertility of the population of the United States is below replacement among those native born…
March 21st, 2013 | 12:55 am
With SSM and IVF, state regulation must increase, not decrease, because there are three parents: love/bio, love/non-bio, donor/bio.
Dave Dutcher,
But married people (same-sex or opposite-sex) have no greater right than unmarried people to conceive children through IVF or employ surrogates to bear children. If IVF and surrogacy are the problem, prohibit them, not same-sex marriage. It simply makes no sense to argue that no same-sex couples should be allowed to marry because some of them might use assisted reproductive technologies (ART) after they are married that they are perfectly free to use before they are married and that opposite-sex couples are also free to use before and after marriage.
As Rob Vischer once so succinctly put it on Mirror of Justice, “If ART is the problem, isn’t opposition to SSM a wildly over- and under-inclusive proxy for addressing it?”
March 21st, 2013 | 8:36 am
The problem with marriage as contract is that it is unique in that it creates individuals unable to consent rationally to a contract and are adversly harmed by it: children.
Dave Dutcher,
Marriages (or marriage contracts) don’t produce children.
March 21st, 2013 | 11:40 am
Travis and all like-minded: The difference between you and me is that you see the prohibition of gay marriage as an illicit use of the powers of the state. I on the other hand hold that the state’s use of its coercive power to radically redefine marriage IS IN AND OF ITSELF AN INTERVENTION into an area where it has no legitimate authority or even any special expertise. Such an intervention certainly is not characteristic of any notion of limited government.
The institution of marriage has always pre-existed any state. The present manifestation of marriage reflects a hard evolution of “trial and error” and accumulated wisdom of the centuries. As such, the state should not venture into the sphere of marriage lightly. The whole concept of “gay marriage” is a very recent idea with no cultural experience. To change marriage to “include” the bonds of gays is a rash, imprudent, and premature legal foreclosure of a cultural dispute.
March 21st, 2013 | 11:56 am
A quick note about black voters-
Among the states that voted on marriage in the fall, only Maryland has a sizable black population. Black voters voted in a majority against gay marriage in Maryland, according to the exit polls, although not at the levels they have in other states. There is a divide between urban and non-urban black voters here, and in Maryland almost all black voters are urban, so they are more likely to support same-sex marriage.
The support does vary by state, however; most of the states with the largest black populations as a portion of their population have marriage amendments.
March 21st, 2013 | 2:16 pm
David, once you accept SSM, there is no case any more to refuse IVF. It’s hard to argue that gays should have the right to marry, yet be denied the ability to have children. If anything, they are even a more powerful argument for its legality, as straight use of IVF has the shadow of irresponsible prolonging of childbearing years.
SSM will cement IVF’s acceptability. It is an even more powerful tool in the normalization of homosexuality. It flows from the premise; IVF is merely redressing an inequality. It may not be entirely rational, but this is how the argument will go. If the society concedes SSM, it will have no basis to criticize IVF at all without casting doubt on SSM couples and their ability to raise healthy kids.
March 21st, 2013 | 2:58 pm
Jack Perry:
I’m not sure how my statement is wrong. I wrote that “[t]he fertility rate of the United States has been stable in the 1.8-2.0 range for the past four decades.”
Going to Wikipedia’s article on American demography (http://en.wikipedia.org/wiki/Demographics_of_the_United_States), with its detailed year-by-year breakdown of fertility rates, and you’ll find that’s the case.
In 1972, the TFR was 2.01 children per woman,
dropping to 1.738 in 1976, but then rebounding quickly to 1.808 in 1980, 2.081 in 1990, and then not dropping below 1997′s low of 1.971 before 2010 when the economic crash hit. Even now, the current low–2011′s 1.89–is higher than TFRs in most of the 1970s.
How was my first summary incorrect?
As for the statement “However, the fertility of the population of the United States is below replacement among those native born…”, yes, that’s the case in almost every immigrant-receiving country on Earth, high-income and otherwise.
Mike P:
“Among the states that voted on marriage in the fall, only Maryland has a sizable black population.”
Yes. I’d suggest that having a high proportion of evangelical and conservative Christians in a state’s population is more revealing a factor as regards to support for same-sex marriage than race.
You can have high fertility rates, or you can have very low rates of childbearing outside of wedlock, but you can’t have both.
March 24th, 2013 | 3:05 am
David Nickol you are mistaken when you asserted that marriage does not produce children.
The marital type of relationship is procreative in kind and it is procreative in outcome very, very, very often. As a social institution, it is procreative in outcome and in kind.
Now, “marriage as contract” is what you reacted to when you replied. The contract, you would say, does not produce children, but that is not what was stated in the comment you objected to. The contract is not a piece of parchment. It is what is the content of the agreement.
The contract is premised on consent to all that marital status entails. It is not a conditional status. Consent to marry entails consent to the sexual basis for consummation which is the sexual basis for the presumption of paternity. This is the legal (and the cultural) default of marriage.
So, yes, this agreement to form the union of husband and wife is a contract that is procreative in kind — and, in practical terms, it is procreative in outcome very, very, very often.
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