Daniel McCarthy, editor of The American Conservative, throws in the towel on marriage equality, recognizing that as the church has lost a good measure of its cultural and legal authority, same-sex marriage is all but inevitable and that it’s hardly worth fighting about anymore. He argues that the mere recognition of a gay identity cast the die:
Same-sex marriage is a radically new notion; its apologists have to stretch exiguous evidence to find any foreshadowing in past societies. This should not be surprising, since homosexuality itself, as a thing parallel to heterosexuality, is a recent invention. Homosexual activity may be as old as civilization, but the idea of a category of person whose sexual identity is primarily defined by same-sex attraction, yet who is otherwise quite like the mainstream of society, is of recent vintage. That people in this group are not negligible in numbers—amounting to perhaps 5 percent of the general population—has also been a slowly dawning realization.
Once society was widely conscious of this population, and had an inkling of its extent, there was no question of reverting to the status quo ante. The knowledge itself had changed the political question. Not only were homosexuals not going back into the closet, but the rest of society could not forget that they exist. And there had been little in the way of a “traditional” approach to something that was beyond the margin of public consciousness. So now the question arose of how to think about—and act toward—this alarming new population. Should it be included in or excluded from the body politic, and on what terms?
At first, exclusion won out: more laws against sodomy were added to the books in the early part of the 20th century. In many jurisdictions, statutes had to be revised to criminalize what before had not even been known. Politicians passed laws; doctors pronounced the condition a disease. There was from the beginning little thought to equal protection under the law.
But in the latter half of the 20th century two things steadily eroded the cultural and legal taboos against homosexuality. The first was that it had come to be seen as an innate desire about which individuals have little choice. The second was that as these strange new beings emerged from their hiding places they didn’t look so frightening—indeed, they looked a lot like everybody else. The great public-relations victory won by the gay-rights movement that hastened the advent of gay marriage was the shift in the 1990s away from a radical, anti-bourgeois image toward one more in keeping with societal norms, from the militancy of ACT-UP to the banality of “Will and Grace.”
But this was not merely a public relations victory. It was inevitable because, as McCarthy notes, as others got to know gay people they were less and less able to view them as a threatening abstract and more able to view them as human beings with equal rights. Actual relationships usually win out over prejudice and the old bigotries inevitably break down.
McCarthy also argues that once we started down the road of not criminalizing homosexuality, full legal equality became inevitable because, in essence, it’s impossible to be half-way pregnant — they are either human beings with legally enforceable rights or they are not. And this has left conservatives in a real bind in figuring out where to draw new lines once the first one has been eliminated:
Meanwhile the repressive approach favored by almost all Americans before the 1960s—it was hardly a distinctively conservative position—has collapsed in the face of reality. Medicalizing or criminalizing homosexuals away was never going to work: what would be achieved after all that effort—the therapy programs, the prison terms, the tax dollars to pay for everything?
Yet if homosexuals were not going to be under legal or therapeutic penalty, what would become of them? This is the question to which few conservatives can supply a satisfactory answer because the principles that conservatives affirm point toward policies that conflict with their wishes.
If a conservative continues to endorse the pre-1960s mentality—itself a modern mentality, quite different from that of, say, the 1760s—then opposing gay marriage and banning homosexuals from serving in the military is not nearly enough. How can such people be too corrupting to be trusted in the barracks or on the battlefield yet be deemed safe for schools? Sen. Jim DeMint (R-S.C.) was guileless enough to express this logic in a 2004 election debate: “We need the folks that are teaching in schools to represent our values,” he said, agreeing that this definition did not include homosexuals. (He later added, in a spirit of fairness, that it also did not include “a single woman, who was pregnant and living with her boyfriend.”)
Consistently applied, this perspective leads to the conclusion that anti-sodomy laws are of some importance, thus Lawrence v. Texas was not merely a moot exercise in judicial activism but a substantive blow to virtue and justice, and at a minimum homosexuals should be discriminated against in public and private employment. Yet this is more than many social conservatives are willing to contemplate, and it most certainly is not something that Republican politicians more discreet than DeMint are willing to voice.
The second consistent position that conservatives can embrace, however reluctantly, would be that of providing full legal equality. This could be seen as a capitulation to liberalism; it could also be seen as an acknowledgement of reality. The trouble with this position is that it doesn’t stop where most conservatives would like it to stop: the logic of legal equality certainly demands that homosexuals be allowed to serve in government, including in the military, and prima facie it demands that they be afforded equal access to the institution of marriage. Conservatives can try to draw the line before that point, but doing so requires making an exception to the principle of legal equality, and exceptions are, by their very nature, more difficult to establish than arguments that go along with general rules….
Social conservatives are caught between two worldviews, each of which they are reluctant to endorse fully. And with good reason: neither is a genuinely traditional because the traditional world—the Christian civilization to which social conservatives look as their ideal—has already given way to something radically new, leaving traditionalists with a choice between modern alternatives of left and right, neither of which is wholly in accord with the old values.
Are the stakes as high as they think? Same-sex marriage will not lead to civilizational collapse; the social atomism of which it is a symptom is more likely to do that. But there are tough questions about how nondiscrimination and public-accommodations laws will be applied against religiously affiliated institutions, even if churches themselves are exempt from having to participate in the public status of same-sex marriage. Traditionalists are right to be worried: religious liberty too is treated as an exception to liberalism, one for which powerful arguments must be made and which always faces an uphill battle. But the key problem here may not be whether or not there’s gay marriage, but the reach of non-discrimination and public-accommodations law.
Social conservatives have a hard time tackling those concerns, however, because of the inherited guilt they feel over the retrograde views that many past conservatives held about legal equality for racial minorities. Social conservatives are also fearful of being demonized as racist in the way that the libertarian Congressman Ron Paul and his son Sen. Rand Paul have been when they have made arguments against nondiscrimination laws. (Barry Goldwater once made much the same arguments.) This is a difficult knot, since conservatives who are not comfortable taking the Goldwater-Paul position against all nondiscrimination law must again make an exception to argue that it shouldn’t apply where homosexuals and their marriages are concerned.
But that’s the pot in which social conservatives are being boiled. They have made enough concessions to the reality of political life in 21st-century America—to the principle of legal equality and the need for some nondiscrimination law—that they’re left making largely unsympathetic and unconvincing arguments for exceptions. Over time they may feel compelled throw their full electoral weight behind the libertarian principle of tolerance even for intolerance as the only viable alternative to a futile authoritarianism or outright surrender to liberalism. From libertarians they might also take the lesson that just because something is enshrined in law does not mean it has thereby acquired a higher moral status.
Here’s a far more hopeful interpretation of these questions: They are losing this fight because they should lose this fight. They are losing it for the same reasons that they lost earlier fights against equality for blacks and for women, because the inexorable logic of the basic principles of liberty and equality is, in the end, simply too powerful.
The axioms upon which this nation was formed, stated so eloquently by Jefferson in the Declaration of Independence, were only partially put into practice at the time, of course. Slavery continued, as did all manner of legal discrimination. But they have provided a rhetorical and intellectual roadmap for every social advance since they were put to paper. That’s why Martin Luther King famously referred to the Declaration as a “promissory note” that was coming due. That same dynamic has repeated itself in every battle since then, and the good guys eventually won them all. We will win this one too, and sooner than anyone could have imagined only 10 years ago.