The conservative case against Prop 8

A sizable number of Republicans have now joined the movement to defeat Prop 8 in California, along with the business community and virtually every newspaper, both large and small, in the state. The only paper so far to editorialize in favor of eliminating marriage rights for some couples is the tiny Paradise Post.

Republican former congressman Tom Campbell made his case yesterday:

Republicans often say that courts should apply the law, not create it. It was really quite a stretch for the California Supreme Court to say that the Constitution of California already contains a right for same-sex marriage, when the Constitution doesn’t say a word about it. The truth is: It’s a new issue. To those who say the Court got it wrong, I say: I agree. It’s for us to decide. Now, let’s make the right decision. And that right decision, in my view, is to allow same-sex marriage in California…

…When my mother was born, women still couldn’t vote in many states. When I entered school, black and white couples couldn’t get married in many states. It’s easy to forget those things, but it wasn’t all that long ago. Someday, we’ll tell our children that, when two adults in our state who wanted to get married were told they couldn’t, we had the chance to change that. I want to be able to tell the next generation that I was part of ending discrimination, not making it a permanent part of the law.

Hat tip to Doug at Below the Beltway, where I left this comment:

Yes, absolutely good for them.

It’s worth remembering, though, that the right to marry the person of one’s choice without regard to race was decided, not by referendum, but by a Supreme Court that found it in the Constitution. If that right were subject to a popular vote, would Campbell be saying that the Supreme Court got it wrong, but that he personally would be voting in favor of marriage equality – or that such a fundamental right should never be left up to the whim of the majority?

It’s profoundly admirable that Campbell desires to play an active part in ending this discrimination. It’s also true that genuine social acceptance and celebration of all families as equal will only come about through changing hearts and minds. Still, there’s something disquieting about this line of argument. It came up again today, with the posting of another column in the same vein to our discussion list (thank you, Russell).

Chicago Tribune columnist Steve Chapman starts with the same premise – that the California case was wrongly decided – and that now “California voters have the chance to do it the right way—by the free consent of the governed.”

Same-sex marriage is a noble goal designed to serve both individual freedom and social health. But a wholesome end doesn’t justify every possible means. Massachusetts, California and (just this month) Connecticut have all legalized gay marriage the wrong way—by impatient, unpersuasive judicial decrees.

Again, we agree that equal treatment enforced by judicial decree is less than ideal; it would certainly be preferable for all of our straight neighbors to freely consent to our enjoyment of the same rights they have. On the other hand, when that consent is lacking, overruling violations of equal protection is what the judicial branch is for.

Chapman takes the approach of defining the civil unions available to Connecticut couples (and by extension the domestic partnerships available to Californians) as the functional equivalent of marriage in every way, then claiming that this equivalence addresses the Court’s equal protection concern. He is skeptical of the Court’s argument that the separate institution

deprives homosexual couples of the equal protection of the law. Far from advancing their equality, it concluded, the legislature “has relegated them to an inferior status.” And: “There is no doubt that civil unions enjoy a lesser status in our society than marriage.”

Chapman insists that we have no way of knowing whether this is true.

It may be that over time people will come to regard civil unions as a pale imitation of marriage. The alternative is they will come to regard them as the full, though distinct, equivalent.

I don’t find this to be an especially persuasive argument. First of all, I don’t agree with the premise that the “right way” to secure the fundamental rights of any marginalized group is through soliciting the free consent of those who are marginalizing them. If the Supreme Court had not imposed its will on the majority of Virginians in 1967, there would likely still be jurisdictions in the U.S. today in which interracial marriage was unlawful.

Further, the notion that we could discover this information by “giving civil unions some time to operate” fails to take into account the impact of the legal status of things on how people think about them. Isn’t the codification of a separate, parallel institution for some couples in itself a powerful signal to think of those couples and that institution as something unequal? And that inequality in turn reinscribes the idea that gay people themselves are unequal.

In what way is an equal partnership between a man and a woman arguably different from an equal partnership between two women or two men? Answer: It’s not, and the insistence otherwise, intentionally or not, reveals only the defining characteristic of so-called “traditional” marriage, that it is an inherently unequal relationship between two irreducibly different kinds of people.

A far more compelling case IMO is the one that Andrew Sullivan has been making, that the genuine conservative position would be to eliminate any barriers to encouraging “mutual responsibility, caring, fidelity, economic prudence, and an institution that fosters self-esteem, family integration and social responsibility”:

…The reform [extending civil marriage rights to gay couples] corresponds with the evolution of civil marriage away from procreation and toward companionship – and social conservatives worry about such change…The most coherent conservative objection to same-sex marriage is simply resistance to any tampering with a vital social institution. I respect that position; it’s certainly devoid of bigotry; and, as longtime readers know, I’m happy to let this evolution proceed state by state for Hayekian reasons.

But as societies change, conservatives have to adapt – at least if Burke is still regarded as a conservative. Given that our society now has a huge number of openly gay couples, many with children, and that the law has to respond to this social reality, the practical decision conservatives have to make is: what shall we do about this? My fear, expressed almost two decades ago now, was that the ad hoc responses – domestic partnership, civil unions and the like – were as practically unavoidable as they were subtly undermining of marriage. Give gays domestic partnerships and marriage-lite and straights will demand them as well. And so marriage becomes less special and less constructive an institution.

I can see that, back in 1989, when I first made the case, the jump to full marriage equality seemed a leap. But two decades later? When it has become the norm in many countries and in one state? When civil unions exist in many other states? Why does it remain socially liberal to resist the conservative logic of including everyone within the same family structure, with the same responsibilities? And, of course, when you actually listen to the current advocates of banning such marriages – and unions – you do not hear nuanced or Hayekian social arguments very often. You hear Virtuallynormal truisms – “I believe marriage is between a man and a woman” – or religious invocations of the “sanctity” of a civil institution.

I suppose marriage equality is socially liberal in as much as it tries to defend and integrate a previously despised minority. But it is socially conservative in its attempt to envelop that minority in the traditions and responsibilities of family life. In this, it is exactly the same as welfare reform: ending a disincentive to family life among a minority that needs more social stability. I have to say that having finally begun to live a married life, all my previous intuitions about its integrating impact have been borne out more profoundly than I ever imagined.

If you can make the leap to seeing gay people as the equal of straight people, then encouraging their marriages to one another is arguably one of the most socially conservative measures now subject to national debate.

That’s a good reason to vote No on 8, but the underlying premise – that gay people are the equal of straight people – is the reason no one should have to be voting on it at all.

The polling on Prop 8 much closer than it should be, due to the large funding disparity of the past few months; we’re catching up now, but if you haven’t donated yet here’s where you can help the No on 8 campaign keep marriage available to everyone.