Positive Liberty

Maggie Gallagher, a noted opponent of same-sex marriage, is guest-blogging this week at The Volokh Conspiracy. So far, she has repeated her usual arguments about how government recognizes only heterosexual marriage because children deserve mothers and fathers, because it’s always been done that way, and because really bad things will happen if we ever change.

When I noticed that the comments were fully enabled, I thought to myself, “Great, here’s a chance to ask her all of the tough questions that she dodges in her columns.”

Happily, the Conspiracy’s commenters have beaten me to it. They’ve done a stellar job, bombarding her with thoughtful but hard-hitting responses like the following:

Such an argument would have worked to deny women the vote, since that practice also had centuries of tradition behind it. Heck, slavery had centuries of tradition behind it, right up until it was abolished… You need to explain why this particular practice of long standing should be retained and “we’ve been doing it this way for a long time” proves far too much.

and

I would like the opponents of gay marriage to argue against gay marriage not in the abstract, but to argue against allowing gay partners to visit one another in the hospital, against allowing them to inherit from a partner who dies intestate, against allowing them to file joint tax returns, etc., etc. If any opponents of gay marriage do not oppose these things, and would allow civil unions but not marriage, then what basis could they have for making a fuss about nomenclature, other than, out of bigotry, a desire to denigrate others’ unions?

and

Does anyone really think that the relatively small number of individuals who would have wanted to enter into a gay marriage will now renounce their homosexuality and enter into happy, “traditional” family units for the sake of the children? Is there anything, socially, to be gained by this, or are we simply exercising majority power over people whose lifestyle “deeply disturbs” us because we can?

and

The “historic” understanding of marriage includes more than limiting the institution to a man and a woman. It includes limiting the institution to a man and a woman (often a man and a girl), chosen by their parents, of the same ethnic, religious, racial and social groups, in which the woman (or girl) is legally subservient to the man to the point where to the point where he could legally “rape” her. (I put “rape” in quotations because until the last few decades, it was not “rape” for a man to force his wife to have sex.)

Perhaps conservatives could explain why they want to legally enforce only the limitation of one man and one woman.

and

If marriage is, in fact, about a couple nurturing children into adulthood, and state support for marriage is justified because nurturing children is important, then how does Maggie justify not permitting lesbian couples (who can and do have children by AID) to get married, or indeed any same-sex couple who could adopt to get married?

and

We have now an experiment going on in Massachusetts, the exact thing federalism is meant to encourage, so let’s see what the result is.

Is Gallagher prepared to say today that she will end her opposition if, in ten or twenty years, all the doom and gloom she predicts doesn’t result in that state?

If she isn’t, it’s hard to see all of her energy to this issue as anything but prejudice masquerading as policy.

Although her professed reason for writing at Volokh was to “achieve disagreement,” Gallagher has not responded to any of these earnest replies. Indeed, she seems not even aware that these questions are being asked–often repeatedly, by many different posters.

Several times she has promised to address the question of just what harm same-sex marriages might conceivably do to the institution of heterosexual marriage, yet at least by my reading she still hasn’t done so. Nor has she supplied even a plausible mechanism for how this, supposedly her central concern, might come to pass in reality.

Meanwhile, Gallagher has also neglected the opposing argument, namely that same-sex marriages might actually strengthen the institution of heterosexual marriage. Although the empirical data on either side is scarce (and although this scarcity gives weight to the go-slow approach mentioned in the last comment I linked), still, I think there is at least a conceivable causal mechanism to explain why same-sex marriage might do a lot of good to the institution of heterosexual marriage: If we as a society send a message that marriage is a universal goal, one that admits of no exceptions and knows no gender lines, then it is reasonable to think that more people of all sexual orientations will want to get married.

But if large numbers of people–gays and lesbians, for example–are told that they do not need marriage, or that marriage cannot help them, or that they are unworthy of the institution, then some marginal number of straight people, especially those who identify most closely with gays and lesbians, will almost certainly come to have contempt for the institution of marriage and to see it as antiquated or irrelevant.

The Boy Scouts make a good parallel here. Formerly, individuals of all political persuasions held the scouting movement in high esteem. These days, however, liberals often mistrust the Boy Scouts as just another conservative anti-gay institution. They have come to view the good morals espoused by the Boy Scouts not as inclusive and all-American, but as quaint and partisan.

As a gay Eagle Scout, it breaks my heart to have to explain to my incredulous liberal friends the great things that scouting can do as an institution. Often they think I’m a Neanderthal for enthusing about virtues that scouting instills. Do we really want marriage to turn out the same way? While allowing gays and lesbians civil marriage seems unlikely to dissuade religious conservatives from marrying, prohibiting gays and lesbians from civil marriage seems quite likely to dissuade at least some liberals, who are not so closely attached to the institution, and who may view the deliberate snubbing of their gay and lesbian friends as a serious blot on the credibility of marriage itself.

Meanwhile, Eugene Volokh has done Ms. Gallagher a tremendous and unnecessary favor by giving top billing to one the weakest and least representative pro-SSM replies. Volokh’s post beats away on a strawman. He writes,

If disapproval of same-sex marriage is analogous to Nazism, then I suppose we live in a nation where the majority of the voters — and apparently both major candidates for President last election — are tantamount to Nazis. And of course the parallels are striking. Nazis: Exterminated homosexuals. Opponents of same-sex marriage: Are skeptical about departing from a millennia-old tradition to extend full legal equality to homosexual relationships. Nope, I can’t tell the two apart, either; sounds like a great analogy to me.

Volokh’s post also implicitly resurrects the claim that opponents of same-sex marriage cannot possibly be bigots. And why not? Well, the overwhelming majority of Americans opposes same-sex marriage, you see, and the overwhelming majority of Americans simply cannot be bigoted.

After all, not once in our proud history have Americans ever stood on the side of bigotry.

But the argument that the majority cannot hold any bigoted views, an argument that Gallagher has explicitly made in the past, is not only contradicted by America’s imperfect history of social toleration. It is also profoundly illogical. It’s the bandwagon fallacy, pure and simple.

Gallagher’s approach seems to be that whenever the question of bigotry comes up, we should look ourselves earnestly in the mirror and declare, “Naw! I can’t be a bigot–I like families, gosh darn it!” And that’s the end of the story.

But the real way to assure oneself of not being a bigot is to look in the mirror, gather up your courage, and ask–Can it be that I actually am a bigot, at least in some ways? And if so, how might I do better?

This approach must of course apply equally, to all sides of all questions. One judges bigotry not by whether a position is popular or unpopular, progressive or conservative, but by whether the person holding that position is willing to engage with their opponents, to consider the issue from all different sides, and to think that maybe, just possibly, those who hold differing views might do so sincerely, and even with good reason.

In the final analysis, a bigot is anyone who holds a position with insufficient thought, never considering in their heart of hearts that perhaps they might be mistaken. It’s not that all social experiments or all new ideas must go on regardless of their consequences, or that anyone who opposes them must necessarily be a bigot–but merely that, when a new idea does come along, we are willing to give it a fair consideration. Are there bigots on my side of the argument, too? You bet. And are there reasonable people on the other? Yes indeed.

I now invite my readers to consider Ms. Gallagher’s complete non-responses to the questions posed above–and to weigh them carefully in deciding just what to think of her in particular. One commenter at the Conspiracy seems to sum it up pretty well:

This discussion has been quite disappointing. As someone who has never been able to get a solid grip on why people opposed same sex marriage, I was honestly looking forward to hearing an intelligent and articulate individual present the argument. I’d like to think I am the type of person who can change his views one major social issues like this; I used to be “very pro-choice,” but after hearing out the arguments from the pro-life camp (admittedly over a number of years) I have become not only more sympathetic to the pro-life movement in general (I certainly oppose “abortion up to the day of delivery”), but I have also come to oppose the constitutionalization of abortion rights. In the environment I grew up in the pro-life position was never effectively articulated.

I was hoping this discussion might have a similar eye-opening effect on why so many people vehemently oppose gay marriage, but I have been deeply disappointed. There is simply no logical connection between the facts Ms. Gallagher is asserting, and the arguments that she is making, and the conclusion that allowing same sex marriage will be a bad thing. Surely there is someone who can argue more persuasively?

My thoughts exactly.

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