The ideology of rights

My first thought after reading David's letter is that he's right, I tend to avoid making arguments outside of explicit appeal to Christian religious values, because I know those aren't accepted in public discourse in our pluralist society. On gay marriage, for example, I am reduced to arguing it against the argument for religious liberty -- which is a valid argument, of course, but as David puts it, arguing around the main issue.

I am on much more solid ground, I feel, arguing with other Christians about the licitness of homosexuality, or other expressions of human sexuality. We have sources of authority that we agree on, however tentatively. But when it comes to the moral basis for our laws, it's a far more difficult thing to argue about than most of us realize.

I believe it's not at all difficult to make an argument for women's rights and full rights for African slaves within the context of a Christian understanding of moral truth. That argument is far more difficult to make for gay marriage and abortion rights, within a Christian context, for the same reason that it would be hard to make a positive moral argument for slavery within a Christian context: it is so antithetical to the core moral values of Christianity. Now, I know some liberal Christians do make religion-based arguments for full gay civil rights, etc., but I find those to be weak arguments. Besides -- and this is a key point -- as secularists constantly tell us, we're not supposed to be governed by Christian particularity in the first place.

In a recent column, Ross brought up Peter Berkowitz's 2005 Policy Review essay forecasting a conservative loss in the courts on gay marriage, because our entire legal culture -- and, I would add, the broader culture -- is built on the idea that expanding liberty for individuals is the proper telos of the American order. This Berkowitz passage is key:

No controversies that arise under the Fourteenth Amendment create greater opportunities for introducing moral judgments about freedom and equality into constitutional law than abortion, affirmative action, and soon, perhaps, same-sex marriage. Nor do any other constitutional controversies provide larger lessons concerning the culture of freedom established by the Constitution.

Four lessons stand out. First, equality in freedom is the coin of the constitutional realm. The central debates over the constitutionality of abortion and affirmative action are hard cases because they do not for the most part pit liberal principles and goods on one side against some other kinds of principles and goods on the other, but rather involve a confrontation between conservative and progressive interpretations of the practical demands of constitutionally protected freedoms. Because it is more difficult to translate arguments against same-sex marriage into the language of freedom, there is a good chance that should the issue come before the Supreme Court, some majority of justices will hold that the Constitution requires it. Second, the Constitution is not neutral between conservative and progressive interpretations of freedom but favors the progressive interpretation, according to which government is responsible for enlarging the sphere of individual freedom and promoting an expansive view of equality. Third, the freedom secured by the Constitution is inherently unstable because there is no fixed stopping point to the demand for it: Progress in enlarging freedom's realm provides new desires and reasons for further enlargement. [Emphasis mine -- RD] Fourth, progress in enlarging freedom's realm creates new threats -- including the temptation to adopt illiberal and antidemocratic measures -- to the preservation of the order that the peaceful enjoyment and wise exercise of freedom requires. These lessons and the cases that bring them into focus show that understanding freedom's progress is critical to freedom's preservation.

You will notice that whenever anyone in these interminable combox debates on same-sex marriage brings up the point that if gay marriage is ruled a constitutional right -- this, as distinct from a privilege granted by statute, as has been done in several states now -- then there is no logical reason why polygamists don't have the "right" to their own "marriage," the person who brings that up is shouted out. The question goes unanswered -- but it doesn't go away. This is why same-sex marriage supporters are left in the same quandary that David rightly observes we conservatives are left in. That is, there is no obvious point beyond which the expansion of rights culture should not go, and cannot go.

A straight friend of mine who supports same-sex marriage said to me in an argument, "Well, nobody supports polygamy, so we won't have to worry about it." I told him that nobody supports it today, but what about tomorrow? Anyway, most people don't support gay marriage (this was 2004 or thereabout), but you don't think the majority should have its say in a matter of fundamental rights. Who are you to deny the polygamists their rights to freely marry as many people as they wish.

"Because marriage is between two people," he said, as if that were a self-evident truth.

He was bringing his own cultural assumptions into the argument, as we all must. As Terry Eagleton and Stanley Fish have recently reminded us, nobody can reason out of nothing; we all must have a context from which to make our judgments, moral, legal and otherwise. That, Berkowitz explains, is why we social conservatives are going to lose on gay marriage. There are already many practices that arguably undermine marriage -- the widespread availability of the Pill, for example -- but few if any conservatives, even if they disapprove of these things, want the state to get involved to stop them. Excerpt:

This is not to approve of the 4-3 decision by the Supreme Judicial Court of Massachusetts. The sjc imperiously denied any rational basis whatsoever for legislation restricting marriage to a man and a woman. Unlike the prohibitions on interracial marriage properly struck down by the U.S. Supreme Court in 1967 in Loving v. Virginia, the prohibition on same-sex marriage, as the Massachusetts dissenters argued, is connected to valid policy questions. The color of one's skin has no bearing on the essential purpose of marriage, but same-sex marriage raises concerns about parenting, child rearing, and the structure of the family, which lie at the very heart of marriage's purpose.

And yet opponents of same-sex marriage must reckon with the fact that over the past 40 years the very meaning of marriage has undergone a substantial change. The sexual and cultural revolutions of the 1960s have pushed the bearing and rearing of children from the core of marriage's social meaning. Ask twentysomethings and thirtysomethings what they hope for from marriage. They will, of course, tell you that they want love and that they definitely want companionship -- indeed, that they expect their spouse to be their best friend. And obviously they want to share the pleasures of sex. Then ask them about children. Many will pause and say well, yes, certainly, they are thinking about children, and eventually, somewhere down the line, they expect to have one or two. But children, once at the center of marriage, have now become negotiable, and what used to be negotiable -- love, companionship, sex -- has moved to the center. Under these circumstances, legal recognition of same-sex marriage will not represent a change in the meaning of a venerable social institution through law, but rather an adaptation of law to a profound change in social meaning.

Berkowitz begins his conclusion:

The American constitutional order speaks the language of freedom. All of the great moral questions of the day eventually get translated into that language, and partisans must turn it to their advantage or almost certainly see their cause go down to defeat. The Fourteenth Amendment's due process clause and equal protection clause provide an all but irresistible invitation from the Constitution to inscribe resolutions to controversies about equality in freedom in the supreme law of the land.

So where are we? It all goes back to the problem of authority. We are reduced under our present order to arguing about rights -- e.g., people like me arguing against gay marriage in defense of religious liberty rights -- because it's hard to find common ground to argue otherwise. David Rieff is surely correct that tradition is no effective basis for arguing against rights, especially not when tradition has been invoked in the past to deny rights claims that everybody now accepts. I can make an argument, and a good one, as to why discriminating against gays in marriage law is not the same thing as discriminating against mixed-race couples, but ultimately, I don't think that's likely to prevail, for the very reasons that Peter Berkowitz identifies: most Americans view marriage today as a very different institution than how it's traditionally been seen, and they view homosexuality differently as well.

Penn Law professor Amy Wax has laid out in various places a secular argument against same-sex marriage. I'm going to reproduce the one from the Federalist Society webpage, because it's so succinct in summing up, from a non-religious perspective, the objections to same-sex marriage:

Here are a number of concerns with legalizing same sex marriage.

First, whether we like it or not, a big part of the gay agenda for decades has been to repudiate what are regarded as overly restrictive expectations of monogamy and sexual fidelity. There still is considerable ambivalence on this point. Unfortunately, and despite wishful thinking, deviation from the strong norm of sexual exclusivity is very destabilizing of heterosexual relationships. Even more unfortunately, what has been happening in inner city and low income communities illustrates this all too starkly: the rise of multi-partner relationships as a way of life has been a major force in the decline of marriage. So we should be wary of extending marriage to a community with influential people who believe that sexual monogamy isn't that important, that sexually unfaithful partnerships are not such a big deal.

Second, there is a stark biological fact to contend with: in homosexual families, by definition, only one parent, at most, will be biologically related to the child. In effect, gay families are either adoptive families or blended families. Adoptive families at least solve a major social problem: parentless children. But blended families bring children into the world who are destined to live without two biologically related parents. What will be the overall effect of that?

A social science literature is now emerging that reveals the relative weakness and instability of heterosexual blended and step-parent families, compared to married couple families with shared biological children. The children in mixed families do no better than those in single parent families! Will homosexual blended families be equally unstable? Living with a biological father seems especially important, and children living with unrelated males do especially badly. Will that pattern extend to gay families? We don't know. It's a big social experiment.

Finally (and this is in some ways the most important concern for me, as a parent), legalizing homosexual marriage will of course create pressure to "normalize" those relationships in all contexts. This will extend to teaching in public schools (and private schools for that matter).

The absolute equivalence of hetero and homosexual relationships will become public orthodoxy. The result will be that parents will be effectively disabled from expressing any preference whatsoever for heterosexuality, heterosexual families, or traditional heterosexual marriage, and any disapproval or lesser preference for homosexuality, even for their own children. The parity of homosexual and heterosexual relationships and life styles will be aggressively pursued, and anyone who dares to question this will be defined as a bigot. Do I look forward to this breathtaking expansion of the empire of political correctness? Certainly not! The implications of such a state of affairs for religious practice and expression are staggering -- this is a whole different subject unto itself.

All these are excellent points, and suggest a sound, Burkean argument against same-sex marriage (i.e., on grounds of prudence). But again, how strong is any of this against claims of rights, especially in a culture, legal and otherwise, whose currents powerfully move in the direction of greater individual autonomy? We have become a society in which autonomy has become not a means to a higher good, but a good in and of itself.

Jim Kalb describes the guiding liberal ideology of American life as having "equal freedom" as its absolute telos. I see no way out of this, frankly; the best trads can do is to slow down its progress, and try to carve out zones of protection for ourselves. James Matthew Wilson, in an appreciative essay on Kalb's book, describes what we're headed toward:

While I have a few small reservations and queries I would like to take up elsewhere, here I should like only to amplify the central historical claim of Kalb's thesis, that the liberal state and its ideology bear intrinsic contradictions within themselves and that this intellectual incoherence ultimately will result in the destruction of the liberal society that classical liberals once hoped to bring into being. The state-mandated, state-managed quest for freedom and equality may be gradual and cautious in its movements, but this only serves to abet its work in dissolving all "illiberal" or "pre-liberal" traditions and institutions that make a society something more than a zoo of isolated individuals whose only common attribute is a legal obligation not to "oppress" one another.

[snip]

As generations passed, the sureties of civil religion and its mild state sanctions were pushed from the public sphere. Classical liberals claimed only to wish to clear the political sphere of debates about the Good so that they could more fruitfully be resolved in the vast areas of life beyond the purview of the State. But those same "vast areas" shrank as modern liberal states became more assertive in clearing life for "equal freedom." Consequently, the pre-political assumptions that served as a foundation for liberal society became fewer and fewer--and more tenuously held with each passing year. If classical liberals were merely procedural liberals, then we rightly understand them to have relied on a significant number of assumptions about a good life and a good society, and to have sought those things while treating freedom and equality only as instruments. They cherished freedom and equality, in other words, only to the extent that these principles facilitated the achievement of goods that were much more important.

[snip]

As Kalb argues, the decline of procedural liberalism into substantive liberalism is no narrative of grand ambitions spoiled by ignoble ones. Liberalism from the beginning bore within itself the principled seeds of its own destruction. Classical liberals were able to offer a compelling vision of liberal society only because they took for granted visions of the Good they thought to be pre-political and nonnegotiable. They simply failed to understand the implications their political principles of freedom and equality had, ultimately, for their pre-political givens of morality, manners, and "values."

If you've hung with this lengthy blog entry this long, I thank you. I don't think I've come to any more firm a conclusion than I started with -- sorry, David -- but I hope I have at least explained why I find this question so vexing as a matter of public policy. And I would hope that the liberals among our readership would reflect that they are in the same boat as the social conservatives: if you think we cannot offer a compelling reason why same-sex marriage oughtn't to be a constitutional right, you cannot offer a compelling reason why the same rights shouldn't be extended to polyamorists. Indeed, I find it hard to see the philosophical basis upon which you would draw the line against almost any conceivable rights claim, except a pure assertion of social convention, which is to say, the will (e.g., the friend of mine who said that worrying about legalizing polygamy if we legalize gay marriage is silly, because Americans don't support polygamy).