I have said that proponents of marriage equality should accept a distinctively conservative claim: that there is a reason to prohibit same-sex marriage. That means that the key premise in the distinctively conservative argument is:
- The reason not to permit marriage equality outweighs the reasons to permit marriage equality.
We should now ask conservatives to defend 6. Again, conservatives have several options here. They could say:
(a) The reason not to permit marriage equality outweighs the reasons to permit marriage equality, because there are no reasons to permit marriage equality.
(b) The reason not to permit marriage equality outweighs the reasons to permit marriage equality, because the reason not to permit marriage equality is a more important kind of reason than any of the reasons to permit marriage equality.
(c) The reason not to permit marriage equality outweighs the reasons to permit marriage equality, because the reason not to permit marriage equality is an equally important kind of reason as the reasons to permit marriage equality, and when we weigh that reason against other, equally important kinds of reasons, it carries the most weight.
Option a looks very unpromising. If conservatives said a, they would be saying that the kind of value marriage now has is the only kind of value there is. They would be saying that there are—literally—no other values. That is very implausible. Most conservatives also believe in other values—liberty, equality, certain kinds of fairness, or justice, for instance. It would be highly implausible if they were to say that there are no such values. And it is equally implausible to think that none of those values provide any reason to permit marriage equality. So conservatives should not say that 6 is true because a is true.
Options b and c look more promising. Options b and c do not require conservatives to deny that there are any other values. They can say that there are other values—justice or equality, for instance—that provide us with reason to permit marriage equality. What they say is just that, when we weigh those reasons against each other, what we have most reason to do is not to permit marriage equality.
The difference between b and c is that they are different ways of seeing the weighing relation. If conservatives say b, they are saying that the reason not to permit marriage equality expresses a more important kind of value. Think of that like playing a trump card in a card game to win a trick. No matter how high my spade is, if you play the two of hearts, and hearts are trumps, you win the trick. That is how option b sees things. Option c, on the other hand, is best understood as if we both hold cards of the same suit—neither of us can trump the other—but that one of us has a higher-value card within that suit.
However, I think neither option b or c provides good support for 6, and so I think we should reject 6 and therewith the conservatives' best argument against marriage equality. The reason I don't think either b or c work is that I believe that justice is the primary social virtue and that justice requires us to permit marriage equality. In other words, I think the converse of b is true; I think that we proponents, and not the opponents of same-sex marriage, hold the trump value.
Is this just an impasse? Can the conservative agree that justice is important and requires us to permit marriage equality, but just go on thinking that his reason to prohibit same-sex marriage trumps my reason to permit it? I don't think so. I think conservatives, too, should admit that justice is the primary social virtue. Where a valuable civil institution is unjust, the conservative should agree with me that the reason we have to render that institution more just outweighs the reason to preserve that valuable institution as it now is—real as that latter reason is.
Why should the conservative agree with me? I think the simplest way to see why is an appeal to our intuitions. Think about, for example, how our legal system is organized. It is organized so as to prevent any injustices being committed. Many other values are sacrificed to that end—victims are required to give sometimes painful testimony, citizens are required to spend time serving on juries, monies are spent on public defenders and appeals. We do those things and sacrifice those other values because the possibility of injustice is of “trump-level” importance to us. We would be appalled if someone defended limiting the number of appeals defendants could make because it would save time and money, and only result in a small increase, if any, of injustice. We could not tolerate that possible increase in injustice, because eliminating injustice trumps other values. So it seems very expensive for the conservative to deny my first claim.
Alternatively, the conservative could agree with me that justice is the primary social value. And he could say that, were justice to require us to permit marriage equality, the reasons justice gives us to permit marriage equality would trump the reasons not to permit marriage equality. But he might deny that justice requires us to permit marriage equality. At this point, the proponent of marriage equality must give her own positive argument for marriage equality. To give and defend that argument would take this post beyond my aim—which was to articulate and respond to a distinctively conservative argument against marriage equality. Suffice it to say that I think it is very difficult to deny that justice requires permitting marriage equality.
Since none of a, b, or c is available in support of 6, I conclude that we should think that 6 is false. So the conservative's second argument fails. Thus, even though we conceded to the conservative that there is a reason not to permit marriage equality, we can still, all things considered, endorse marriage equality.