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.
27 comments
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D. C. Sessions
May 4, 2012 at 9:05 am (UTC -4) Link to this comment
Who will join me in (once again) raising a cup of coffee to the memory of Harvey Milk?
Marcus Ranum
May 4, 2012 at 9:06 am (UTC -4) Link to this comment
recognizing that as the church has lost a good measure of its cultural and legal authority
Ah, I see his mistake. It never had any cultural authority; that’s why it had to ally with kings and governments and temporal (i.e.: “real”) authorities. The fact that religion needed to make gay marriage illegal is a tacit admission that they knew that, otherwise, eventually they’d be ignored. After all, if a vast majority of humans believed that there was a god that didn’t want gay marriage, then we wouldn’t be having this discussion at all.
troll
May 4, 2012 at 9:15 am (UTC -4) Link to this comment
Funny how often those two things are one and the same…
jamessweet
May 4, 2012 at 9:19 am (UTC -4) Link to this comment
Although I disagree with several of the characterizations and premises, this is a pretty well-thought-out article. In particular, tone aside I think this little blurb is a good summary of the dilemma which shows the unsustainability of modern conservatism:
Indeed, while the libertarian position of allowing private citizens and businesses to discriminate in whatever way they see fit is a logically consistent one (and arguably a philosophically defensible one), it has proved to be woefully impractical, at least in the eyes of most. The vast majority of people in America have come to accept that, despite the apparent concession on freedom of conscience, laws preventing businesses from banning non-whites (for example) are necessary — and even improve real liberty even as they curb nominal liberty. So that position is out. The only alternatives left are the authoritarian mish-mosh of modern conservatism, or “outright surrender to liberalism”.
I vote for the latter :)
jamessweet
May 4, 2012 at 9:21 am (UTC -4) Link to this comment
QFT. The article is chock-full of gems like this. It seems like this guy is (mostly) a clear and rational thinker, but you’ll have to pry the conservatism from his cold dead hands. He keeps reasoning through the facts and coming up with undeniably liberal conclusions, and then being like, “Well, but it’s not really liberal, because it’s obviously right!” Priceless :)
JT (Generic)
May 4, 2012 at 9:27 am (UTC -4) Link to this comment
Traditionalists are right to be worried: religious liberty too is treated as an exception to liberalism,
Wait, what?
How does the author figure this? Does the author not understand that their religious liberties end where other peoples’ liberties begin? That’s not the same thing as banning religion.
Larry
May 4, 2012 at 9:30 am (UTC -4) Link to this comment
What’s taken this dickweed so long to figure this out? We, on the progressive, liberal side have known this for years. Who a person chooses to be with has no correlation with their fitness as a citizen and access to the same rights enjoyed by everyone else. Any relying on a few contradictory phrases in some ancient book does not make for good civil law.
Donovan
May 4, 2012 at 9:41 am (UTC -4) Link to this comment
I love how he spends the first part of his article going on and on about how good conservatives can’t be held accountable for the beliefs they held in the not so distant past and then ends his article by damning the left by association with Goldwater. Why, oh why must the right twist themselves into such illogical or downright dishonest knots every time they speak or write? The conservative stance for inequality is obvious, and it is their issue. The left’s equality issues are separate and, while still in need of work, will not be repaired in the same way.
Quodlibet
May 4, 2012 at 9:41 am (UTC -4) Link to this comment
I hate that use of the word “allowed.” It reeks of privilege and the assumption that those in power can grant rights, when the opposite is true: All human beings have rights. The problem occurs when those in power decide to limit or remove those rights. Then they feel all warm-fuzzy-righteously generous and progressive when they they “allow” marginalized people to exercise their rights. They’ve got it backwards.
(Poorly expressed – migraine today. But I think this smart crowd can figure out what I’m trying to say.)
MikeMa
May 4, 2012 at 9:46 am (UTC -4) Link to this comment
This guy is going to lose his sooper secret GnoP decoder ring and I bet WND is preparing hot oil.
The emotional fallout will take a lot longer to clean up than the political fallout from recognizing fairness. We still have racial issues all over and that was (supposedly) settled many years ago. If the US passed a same sex marriage bill today, we would still be reading quotes from cretins about ‘damned faggots’ in Alabama 50 years into the future.
Winning is good, right and inevitable but convincing people is all but impossible.
dingojack
May 4, 2012 at 9:46 am (UTC -4) Link to this comment
Quodlibet –
Rights don’t belong to governments; rights always belong to the people.
Is that kind of the idea at which you were aiming?
Dingo
Doug Little
May 4, 2012 at 9:49 am (UTC -4) Link to this comment
Hear, Hear.
Chiroptera
May 4, 2012 at 10:02 am (UTC -4) Link to this comment
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….
I’d mention that the church has also lost its moral authority, but I’m not sure it ever had any to begin with.
eric
May 4, 2012 at 10:21 am (UTC -4) Link to this comment
This paragraph made me think of traditional Christian civilization of the 1500s, a different kind of stake being raised, the specific ‘old value alternatives’ that are no longer available to traditionalists…and has me wondering whether McCarthy regrets the loss of these alternatives, or is glad they are gone.
Its difficult (for me) to figure out whether he thinks the currently available policy alternatives are a regrettable retreat, or an improvement. He uses passive voice so much, it really hides what he thinks.
jjgdenisrobert
May 4, 2012 at 10:32 am (UTC -4) Link to this comment
This guy sounds very much like William F. Buckley who, although an inveterate racist himself, realized before most of his fellow conservatives that the writing was on the wall for the kind of overt racism that was the norm in those days, and while shedding a tear for lost privilege, called for its end. There quite a bit of “Oh How I Wish It Weren’t So, but…” in this article.
But he is right overall, even though he stumbles on the details. The conservatives lost this battle the day a gay person stood up and people went “That’s what a gay man is? What the hell was all the fuss about??”
And it’s a lesson that shouldn’t be lost on atheists.
matty1
May 4, 2012 at 10:49 am (UTC -4) Link to this comment
I disagree religious liberty, properly understood as the right of individuals to hold any religious opinion they want without being punished or excluded from government is liberalism.
Hell, the fight for real religious liberty is arguably where liberalism began. It was the conservatives of the time who used the inquisition to squash the religious liberty of Spanish Jews, Muslims and Protestants, it was conservatives who passed Test Acts banning Catholics from a whole range of jobs in England.
If you really support religious liberty, you are a liberal.
cptdoom
May 4, 2012 at 10:54 am (UTC -4) Link to this comment
And a double hear, hear over here, albeit with a cold Diet Coke rather than hot coffee (it’s going to be 88 in DC today).
What I love about this piece though, is McCarthy’s inability to state the obvious. When he says:
He misses two major points: 1) we are not “strange new beings,” we’re human beings and that’s what people realized when we finally came out and 2) we are also members of actual families, and that likely had the biggest impact in society’s shift towards acceptance. The fight for gay rights, for those who are family and friends to the LGBT community, is not about someone down the street or in another country, it is about sons, daughters, cousins, roomates, etc. Look at the power of someone like Zach Wahls – the college student who so eloquently defended his two moms to the Iowa legislature and had his testimony go viral. The power of his voice is because he is a traditional straight man – Eagle Scout and all – and yet he is able to understand, empathize and explain to others the realities of his relatives’ lives and his own.
I also love this section, which only shows how far down the “liberal” road we’ve gone:
So now ACT-UP is “more in keeping with social norms”? That is a radical shift.
brucecoppola
May 4, 2012 at 11:42 am (UTC -4) Link to this comment
@cptdoom: I think you misuderstood a couple of things.
I think “strange new beings” was an attempt at understated irony.
“From the militancy of ACT-UP to…”Will and Grace” are examples of the move from “radical” (ACT-UP) to “in keeping with societal norms (Will & Grace).
ArtK
May 4, 2012 at 11:45 am (UTC -4) Link to this comment
The problem is how one defines “religious liberty.” McCarthy and other conservatives define it as “the right to practice one’s religion without interference, no matter how it affects others” while the liberal interpretation is “the right to practice one’s religion without interference, until it negatively affects others.”
The idea that one’s right to freely swing a fist ends at the bridge of someone else’s nose seems to be lost on conservatives.
abb3w
May 4, 2012 at 12:13 pm (UTC -4) Link to this comment
Mind you, this doesn’t mean there may not be further “victories” for the conservatives/reactionaries along the way. The NC Amendment 1 is very likely to pass, for example. Alas.
However, the position is doomed, doomed, doomed. Birth cohorts become less and less convinced Teh Gay Iz Evil as you move from looking at elders to the younger; and even within cohorts, attitudes continue to become more progressive nationwide (though very slowly in the sluggard south).
At this point, there is almost no hope of passing a federal Straight Marriage Only amendment. The House might muster passage as a nigh-empty gesture. Unless the GOP takes the Senate this election cycle, time merely builds the political wave against them. If they do take the Senate, they need to either muster the 60 votes for cloture (unlikely), or change the rules of Senate debate for Amendments (risky). If it gets past the Senate, they then need to get 38 state legislatures to sign off — when Nate Silver’s model suggests there’s 14 states this year that the public wouldn’t pass it. This isn’t impossible (after all, California is one, and Prop 8 passed), but would require a serious legislative push — and likely only pass at the price of at least a few legislatures changing control thereafter. And even an Amendment’s passage would not stop the tide, but instead galvanize a backlash of political frenzy on the Left for a generation. It might last longer than the dozen-plus years of the 18th Amendment, but the demographics trends would shift the balance to manage counter-amendment in a historically brief span.
More likely is a Supreme Court ruling in the Prop 8 case upholding the ban, and solidifying the case law that states can ban gay marriage. This would be less galvanizing, but not by much. Legislation (with no chance thus far) has already been introduced to revers the DOMA statute, and require that the Federal government and all other states recognize the marriages sanctioned by any state. Passage on that looks possible within a decade… which might be soon enough to be struck down by the SCOTUS, if Ginsburg is replaced by a much more conservative appointment (pretty much requiring Romney to win). Ultimately, though, the demographic shift merely means it would only be a delay; the supreme court can be overturned by Amendment. Going by the demographics alone, it looks like circa 2030-2040, those who actively support legal gay marriage will be a majority in enough states for passage. Possibly sooner, if older cohorts also continue becoming more liberal on this issue.
Of course, there’s the philosophical possibility of some brilliant new argument being introduced into the debate, or something else to dramatically alter the demographic trends. However, there’s no sign of that so far.
The surprising thing is that it’s taken this long for conservatives to figure out the cause is doomed, and to start wondering why.
Bronze Dog
May 4, 2012 at 12:19 pm (UTC -4) Link to this comment
We have every reason to think that’s how things always were. Barbaric punishments like execution by stoning lowered their visibility by intimidating them into hiding their sexuality. We live in less barbaric times now, so now they can live with less fear.
tacitus
May 4, 2012 at 12:30 pm (UTC -4) Link to this comment
Next stop — universal healthcare. One can certainly make the same arguments of:
1) Foot in the door — decriminalization of homosexuality vs. Medicare, Medicaid, VA, critical care, etc.
2) Familiarity — gay friends vs. parents being taken care of by Medicare (Andrew Sullivan has softened his opposition to government healthcare having seen how well treated his parents have been on the British NHS)
3) Inevitability — young people see gay as normal vs. every other nation that can afford universal healthcare has some form of it.
4) The World Not Ending — gay marriage != Armageddon vs universal healthcare != creation of government drones.
It may take a decade or two longer, but you know it’s going to happen.
tacitus
May 4, 2012 at 12:37 pm (UTC -4) Link to this comment
They’re only figuring it out now because they’re worried about losing much more than the battle over gay marriage. Better to jettison this one issue than to see yourselves excluded from the corridors of power for a generation or more.
michaelgaribaldi
May 4, 2012 at 12:46 pm (UTC -4) Link to this comment
I don’t GET the coservative mind at all. It seems that a normal brain just accepts new information, and then moves on. With a conserative, everything is as painful and as frustrating as trying to dress a hyperactive monkey in a tuxedo, inside of 10 minutes.
michaelgaribaldi
May 4, 2012 at 12:48 pm (UTC -4) Link to this comment
And another thought. I bet conservatives refused to accept fire, until someone pointed out that you could burn down neighboring villages with it.
tacitus
May 4, 2012 at 2:22 pm (UTC -4) Link to this comment
Oh, it’s a lot more complicated than that, and liberals (myself included) can sometimes be just as reticent about accepting reality as conservatives (though it doesn’t seem to be quite as often!).
If it was otherwise, religion would not have such a stranglehold on the minds of such a large portion of the world’s population, for a start.
Area Man
May 4, 2012 at 2:52 pm (UTC -4) Link to this comment
The American Conservative continually surprises me. I don’t keep track of who its writers are, but they’re amazingly rational and lucid. I find myself agreeing with them, at least in part, a good bit of the time. Some of this may be because I follow links to them from liberal blogs, so there’s some self-selection going on. But still, compared to the unbridled crazy and stupid that most of the right puts out, it’s almost shocking.
The people there seem to follow the old-school, small-c type of conservatism that, for example, Andrew Sullivan has been trying to resurrect. One that’s not necessarily opposed to liberalism or to progressive change, but is rather opposed to radicalism, revolutionary change, and the abrogation of tradition. I have my differences with that point of view, but in a different political context where the American right were not dangerously insane and the radical left actually had some measure of power, I might join with them.