What Marriage Equality Won't Do, Ctd


Eugene Volokh blesses Jon Rauch's "chill, gays" article - which is a little odd, as Jason Kuznicki points out. Volokh says he's for marriage equality but adds so many qualification and arguments from the far right, he sounds like Jeff Goldberg on Israeli West Bank settlements. Take Volokh's slippery slope argument from a year ago:

[P]eople who worry about slippery slopes generally and who worry about slippery slopes in the field of sexual orientation and the law can't be lightly dismissed. And it is reasonable for them to worry: If we have gotten this far partly through slippery slope effects, will we slip further, and to what? In particular, would this increase the likelihood of further broadening of antidiscrimination laws? Would it increase the likelihood that groups (such as the Boy Scouts) that discriminate based on sexual orientation will be excluded from tax exemptions, just as groups that discriminate based on race are often excluded from tax exemptions? Would it increase the likelihood that such groups will be excluded from generally available benefits?

Would it increase the likelihood of broader restrictions on anti-homosexuality speech in government-run organizations, or in private organizations coerced by government pressure by analogy to the broad support in many areas for restrictions on sexist speech? Would it increase the likelihood of restrictions on people's choosing roommates based partly on sexual orientation, or advertising such preferences in "roommates wanted" ads? Would it increase the likelihood of punishment of wedding photographers who refuse to photograph same-sex weddings (even if they have religious objections to participating this way in such ceremonies, and even if they feel that requiring them to photographing same-sex weddings compels them to create artistic works that they do not wish to create)? Would it increase the likelihood that legislatures will repeal religious institutions' partial exemptions from some bans on sexual orientation discrimination in employment?

But the slope stops slipping at some point. And when we slip too far we remain capable of walking back up the hill. A reader adds:

Whenever I hear the "churches will have to marry them" argument, I think of my straight cousin and his equally straight wife, both baptized and confirmed in the Catholic church. When they wanted to get married, they went to the church, the priest said the church wouldn't marry them because they hadn't been to mass or confession in years. Period. So they had to get married in a protestant church. If they couldn't force the church to marry them, how on earth could a same-sex couple force them to do so? 

This all relates to an old Ross Douthat post the Dish meant to respond to. A couple months ago, Douthat wrote a long second response to my criticism of his column . There are many points to disagree with. Here's his conclusion:

The benefits of gay marriage, to the couples involved and to their families, are front-loaded and obvious, whereas any harm to the overall culture of marriage and childrearing in America will be diffuse and difficult to measure. I suspect that the formal shift away from any legal association between marriage and fertility will eventually lead to further declines in the marriage rate and a further rise in the out-of-wedlock birth rate (though not necessarily the divorce rate, because if few enough people are getting married to begin with, the resulting unions will presumably be somewhat more stable). But these shifts will probably happen anyway, to some extent, because of what straights have already made of marriage. Or maybe the institution’s long decline is already basically complete, and the formal recognition of gay unions may just ratify a new reality, rather than pushing us further toward a post-marital society. Either way, there won’t come a moment when the conservative argument, with all its talk about institutional definitions and marginal effects and the mysteries of culture, will be able to claim vindication against those who read it (as I know many of my readers do) as a last-ditch defense of bigotry.

But this is what conservatism is, in the end: The belief that there’s more to a flourishing society than just the claims of autonomous individuals, the conviction that existing prohibitions and taboos may have a purpose that escapes the liberal mind, the sense that cultural ideals can be as important to human affairs as constitutional rights. Marriage is the kind of institution that the conservative mind is supposed to treasure and defend: Complicated and mysterious; legal and cultural; political and pre-political; ancient and modern; half-evolved and half-created. And given its steady decline across the last few decades, it would be a poor conservatism that did not worry at the blithe confidence with which we’re about to redefine it.

Like Volokh, Ross is engaging in a slippery slope argument, but Ross offers no concrete harms at the bottom of the hill. His argument is brilliant in its own way; you can't disprove invisible, immeasurable harms. It is a first principles argument that appeals to the genuinely conservative notion of preservation. But conservatism is not immune to change, it is not intent on cryogenically freezing the moral compromises of today and preserving them eternally. And conservatism must weigh unknowable potential pitfalls less heavily than known harms; what sort of perverse moral arithmetic would count the very tangible and painful consequences of denying marriage less than the immeasurable harms Ross fears?

Conservatism must have a vision for the future of marriage rather than a nostalgia for a time when marriage was primarily an economic institution. If heterosexual marriage is now about love and not necessarily about procreation (this is simply a social fact, as every recent court decision has been forced to acknowledge), and the love gays feel towards their spouses is equal to the love straights feel towards theirs, how can one logically deny marriage equality?

If love is created equal, then the institution that celebrates love ought to be open to all.