Positive Liberty

[This piece references an earlier post titled "Three Arguments." You may want to start there if you have not already read it.]

In my earlier post, and with only a slight nod to Keith Baker, I suggested that three types of arguments tend to dominate American political discourse today. Almost invariably, we justify our political thoughts based either on the will of the majority; or on some theory of justice, understood as a proper apportionment of reward and punishment; or on pluralism, the idea that life is somehow better (though not necessarily more just) when a country permits many different modes of life to exist simultaneously, whether or not the majority of citizens find those practices particularly moral or well-suited to themselves.

In the comments, Paul suggested utilitarianism as a fourth possible argument, but I am inclined to view utilitarian arguments as particular theory of justice; he suggested much the same.

One implication of my typology above is that the arguments from democracy and from pluralism are not based on a theory of justice, and in general I would indeed argue that they are not. The theory that “the greatest number makes right” is so crude a theory of justice that it hardly merits the title. Indeed, even those who advance arguments from democracy seldom go so far as to put it so flatly.

On the contrary, majorities tend to decide unproblematically only those issues where the side of justice is no doubt present but more or less unclear. The best example of this is the election of representatives, where it is often surpassingly difficult to determine which candidate most deserves a given post. It’s not even a question that we’re used to asking ourselves. Instead, we usually ask which candidate’s ideas best accord with our own particular theory of justice. Then we vote for that candidate–and accept the result whatever it may be. It’s very difficult to see any theory of justice at work in this system.

As to the argument from pluralism, it seems to arise whenever justice becomes impractical or insufficiently telling. There may be strong majorities favoring one practice or another, but enforcing the majority view simply will not work, either because the minority is too entrenched, or the course of action needed to enact majority will is too difficult, or where the question becomes so complex that it can’t be handled in any other way.

For example, is the United States a Christian nation? It is by majority, but it is not by policy. If the United States were made a Christian nation by policy, which religions would count as Christian? Would Mormons be called Christians? Some Christians don’t think that they are. And what about the Native American Church? What about Cao Dai? These messy considerations–and not some systematic theory of justice–are the real foundation of pluralism.

Pluralism exists where justice cannot reach; it also exists beneath justice, where the strict application of justice by something so clumsy as a government agency would do no good.

As I wrote earlier, we do not speak of justice in the question of hairstyles, asking ourselves which style is most deserving or which is most reprobate. Perhaps such styles exist, and some are indeed objectively better than others–but it is generally considered nonsense to talk that way. On the contrary, we seem to recognize that these things are not worth pursuing as matters of public policy, or at least they are beyond the justice that we are called to enforce.

Given these considerations, I now want to look at the way that these strategies play out in the debate over gay rights.

I would argue that the clearest gay rights success of all time has been in the area of housing and employment nondiscrimination. I am not referring, however, to the nondiscrimination laws enacted in various jurisdictions; these have been quite incomplete as they stand, and progress on the legislative front has been slow indeed.

I mean instead the astonishing societal, non-legislative accomplishment: A very solid majority now believes that it is wrong to fire or evict someone merely for their sexual orientation. The spread of this belief has kept many openly gay people both housed and employed, and it is the belief, not the law, that has had the greatest say in these matters. Non-discrimination laws, while admirable in their intent, will have little effect if the public will does not exist to enforce them.

If pressed, I suspect that most people who believe in nondiscrimination would justify themselves by declaring that it was none of their own business what went on in another person’s private life. They might also add that so long as the rent arrived on time, so long as the worker did his job well, then there should be no reason at all to complain.

The first claim–that homosexuality is none of our business–is quite clearly a pluralist argument. Homosexuality may be good or bad, but it is not my place to decide. The second claim appears to be an argument from justice, for justice demands that if all other things are equal, good workers should keep their jobs.

I would suggest, though, that this second claim also implies an argument from pluralism, one that is made almost unconsciously. To understand this view, it is necessary to consider some of the more traditional opinions on homosexuality.

At one time, homosexuality was thought to be a grave moral disorder, akin to alcoholism or kleptomania. Indeed, we still find these views articulated on the religious right. Considered as a grave moral disorder, homosexuality stood connected with a constellation of other moral faults; the homosexual was thought particularly apt to fall into these as well. Thus, for most of its recorded history, homosexuality most certainly was thought an indicator of likely job performance: It was only proper to fire a homosexual, because it gave him precisely what he deserved.

It took a remarkable lot of rethinking to make homosexuality irrelevant to job performance. Thus the second claim given above–that good workers deserve to be retained whether they are gay or straight–is in one sense an argument about justice. But for gay workers ever to be considered of a kind with straight workers and therefore meriting the same treatment, a great many people must have shifted their thinking on homosexuality out of the sphere justice–and into the sphere of pluralism. Saying that competent gay workers deserve to keep their jobs is an argument about justice, but it could only be made once the pluralist argument had already been thoroughly established.

Arguments from pluralism have supplied many of the gay rights movement’s most notable successes. And yet they fail to address same-sex marriage because opponents of same-sex marriage can advance an argument of their own from pluralism. It might be stated as follows:

Certainly, the United States can tolerate homosexuals. We are a free country, and we allow for many different ways of life, even if we find a lot of them misguided or dangerous. But marriage is one way of life, and homosexuality is another, and the two are quite incompatible. As pluralists, we will allow you your homosexuality–but you must in turn be pluralists as well, and allow us our marriages undisturbed.

It is a reasonable argument, particularly given that there are almost no well-documented historical instances of same-sex marriage. Homosexuality and marriage would seem to be separate states.

So where do we turn from here? The argument from democracy doesn’t help us much, at least not yet. But as you may have guessed, I consider the argument from democracy to be by far the weakest of the three. Even at its best, the argument from democracy when applied to questions of policy does little more than to justify something that was likely to occur whether right or wrong. But majorities are correct only insofar as they are wise–not insofar as they are numerous. Arguments against same-sex marriage based merely on the fact that most people don’t want it to exist are of no merit whatsoever; arguments in favor of same-sex marriage would be equally empty for the very same reason. Most people in the nineteenth century opposed women’s suffrage, and most people before the civil war supported continuing slavery; out of these dead ends, very little good can come.

So we advocates of same-sex marriage must plead our case from justice. We must argue that our relationships are fundamentally similar to heterosexual relationships, and that the differences that exist are not sufficient to overwhelm the similarities.

It’s not an easy argument. The best historical analogy to our current debate might not be racial integration, but women’s suffrage.

Women’s suffrage proposed treating men and women equally in an area where they had virtually never been treated equally before–and despite their entirely obvious differences. It proposed that beyond the anatomical, some greater and more controlling similarity might be found. Such is our situation, down to the letter.

Arguing for similarity isn’t easy, particularly when same-sex and heterosexual relationships receive such unequal treatment in society. We end up arguing about causes and effects a lot: Are gay relationships less stable by their nature, or do they break up more often because families, churches, and governments do not support them? We also end up arguing about relative degrees of difference: Homosexual relationships don’t have any inherent ability to create childen, but many people in those relationships have children anyway. Are these children fundamentally the same–or are they different?

And there’s always the question we don’t like to talk about: Are their sex lives any different? By nature?

Unlike the successful arguments from pluralism we have made in the past, none of these are easy points to make. I know it’s going to be a terrible letdown at the end of this essay, but I don’t have the answers here. I am absolutely convinced that in its fundamentals, my own relationship has the same essential dignity as a straight marriage. But how to convince a skeptic?

And how did our great-grandmothers do it, anyway?

In the next post on this subject, I plan to discuss some exceptions to the typology I’ve been working with–including one that may offer some help in this dilemma.