Marriage equality (part I)

The Irish Times columnist Breda O'Brien is infamous for her argumentative, journalistic, and ethical failings. A friend of mine recently made sapient criticism of a particularly egregious Breda O'Brien article about marriage equality. My friend and I are of a mind on the substantive issue: we endorse marriage equality. But I'm curious whether what Breda O'Brien wanted to do in her column can be better accomplished. That is: I'm curious whether there is a distinctively conservative, non-question-begging argument against marriage equality that should trouble those of us who endorse marriage equality.

My interest in that question may seem odd to you. If I think that we ought to have marriage equality, shouldn't I be happy that opponents of marriage equality deploy such terrible arguments?

Here is my answer. I doubt that many people believe that the reason we ought to prohibit same-sex marriage is a god's arbitrary dictate (though I'm sure some do). And I think many people, even if they have reactions of disgust to homosexual sex, do not think that their reaction of disgust is a good reason to prohibit same-sex marriage (though again, I'm sure some do). But many of those people, I suspect, still think there's a good underlying reason to prohibit same-sex marriage, even if they find it hard to express that reason.

If that's true, then if we proponents of marriage equality only respond to the terrible arguments that Breda O'Brien's article exemplifies, our responses might leave many people uncomfortable. Those people might have the lingering feeling that there was some truth in those arguments, terrible as they were, and that our objections to the arguments missed that kernel of truth. If, however, the argument against marriage equality is set out at its strongest and rejected, I hope those lingering feelings can be lessened, and that people can more wholeheartedly embrace marriage equality. At the very least, we will more clearly understand what separates us from our opponents. That doesn't mean I think it's any less important to respond to Breda O'Brien's, and others', terrible arguments; I think it's really important to do that. But I think we ought to undertake, too, this different task.

—o—

With that in mind, here's how I think opponents of same-sex marriage should argue for their position. First, they should make this modest argument:

1. There is reason to preserve valuable civil institutions as they now are.

2. Marriage is a valuable civil institution.

3. Permitting marriage equality would not preserve marriage as it now is.

4. Therefore, there is reason not to permit marriage equality.

There are a few things to say about that argument, to which I'll return below. For now, the important point is that its conclusion is modest. One could agree with 4 but still think that the reasons to permit marriage equality outweigh the reason not to permit marriage equality.

So opponents of same-sex marriage also need to make this second argument:

5. There is reason not to permit marriage equality.

6. The reason not to permit marriage equality outweighs the reasons to permit marriage equality.

7. Therefore, marriage equality ought not to be permitted.

The two arguments are logically valid: if their premises are true, the conclusions 4 and 7 follow. So if we want to reject the conclusions, we need to reject one or more of 1, 2, 3, or 6. Premises 2 and 3 look secure to me.* So I think we need to ask the opponent of marriage equality to support 1 and 6.

—o—

Let's look at premise 1 first. Premise 1 can be supported by this principle:

(P) If x is valuable, there is reason to preserve x as it is.

I think P looks at least initially plausible. If changing x risks the possibility of x's losing its value, then it looks like there is a good reason to preserve x: the reason is that x is valuable and we don't want to risk the loss or extinguishing of that value. But you might think, on further reflection, that P is false. Lots of things are valuable, but can easily be made more valuable without any worry about those things losing their value. In those cases, at least, P looks false. There's sometimes just no reason to preserve valuable things as they now are.

The opponent of same-sex marriage now has a choice. He could agree that P is false in the latter cases, but say that marriage equality is the former kind of case. Or he could say that, even in the latter cases, P is true.

Suppose he takes the first option. Then his first argument looks like this:

1' If x is valuable, there is reason to preserve x as it is, when changing x would risk a loss of x's value.

1a'. There is reason to preserve valuable civil institutions as they now are, when changing those institutions risks a loss of their value.

2. Marriage is a valuable civil institution.

3. Permitting marriage equality would not preserve marriage as it now is.

3'. Permitting marriage equality risks the loss of the value of marriage.

4. Therefore, there is reason not to permit marriage equality.

With the addition of 3', this is now a modest version of a familiar argument. I think this is a bad option for the opponent of same-sex marriage. It's bad because 3' is almost certainly false. Supporting 3' requires making dubious claims about the nature of the value of marriage, e.g. that the value of marriage lies uniquely in the value of male-female union, in natural law, in divine command, etc.. It's hard to see how such claims could be defended. If defending them requires further religious or moral claims, then they risk begging the question against the proponent of marriage equality. So I don't think the best argument against marriage equality ought feature 3'. 

But I said that the opponent of marriage equality had a second option. The second option was to say that, even in those cases in which a change in x would reliably increase the value of x and not risk reducing the value of x, there is reason to preserve x as it is. If he could persuade us of that, the opponent of marriage equality could make this argument:

1' If x is valuable, there is reason to preserve x as it is.

1a'. There is reason to preserve valuable civil institutions as they now are.

2. Marriage is a valuable civil institution.

3. Permitting marriage equality would not preserve marriage as it now is.

4. Therefore, there is reason not to permit marriage equality.

The controversial premise 3' is gone, so this argument looks more promising. So can opponents of same-sex marriage defend 1'? They can do so if they endorse what I'll call, adapting the philosopher G. A. Cohen's language,** the Fundamental Conservative Principle:

Fundamental Conservative Principle

The value of valuable things is not exhausted by their being repositories of exchangeable value; in addition to that, valuable things possess a kind of value that is non-exchangeable.

The Fundamental Conservative Principle is apt to appear, at first, no more than a bit of sophistry or clever wordplay. The key thing to realize is that the Fundamental Conservative Principle relies upon this surprising claim: there are two kinds of value. The first kind is what we are often, but not always, talking about when we talk about value. The first kind of value is like currency; it's reasonable to prefer $10 to $5, but silly to say that there's a reason to prefer $5 to $10. The second kind of value is not like that. It's a kind of value that particular things have. And—here's the odd-sounding part—particular things have this second kind of value independently of how much of the first, exchangeable kind of value they have. They have a distinctive kind of value just by virtue of being the particular valuable thing they are. It's the second kind of value that conservatives can leverage to support 1'.

I think the Fundamental Conservative Principle is true. So I think we should accept 1'. Since the first argument is valid, I therefore think we should accept 4: I think we should accept that there is a reason to prohibit same-sex marriage. Some people might be uncomfortable ceding that much ground to opponents of marriage equality. So they might, for that reason or for another reason, still want to argue against the Fundamental Conservative Principle. If they do so successfully, then the argument against marriage equality fails, since 1' is false. The core disagreement between those people and opponents of same-sex marriage is a disagreement about the truth of the Fundamental Conservative Principle.

On the other hand, people like me, who accept the Fundamental Conservative Principle but also endorse marriage equality, must accept 5 in the argument against against marriage equality. Recall that argument was:

5. There is reason not to permit marriage equality.

6. The reason not to permit marriage equality outweighs the reasons to permit marriage equality. 
7. Therefore, marriage equality ought not to be permitted.

Since people like me accept 5, and since the argument is valid, we must say that 6 is false. If the conservative can defend 6, we are sunk. So a lot turns on the defense of 6. I turn to that part of the discussion in the second half of this blog post.

—o—

Before I examine the second part of the argument against marriage equality, let me pause here for a moment. I said that my aim was to discover if a kernel of truth lay behind many people's uneasiness about permitting marriage equality. You might think I've gone astray from that goal. You might think that it's crazy to think that many of the people who feel uneasy about marriage equality feel uneasy because they have the Fundamental Conservative Principle in mind. And, you might conclude, if nobody really believes the Fundamental Conservative Principle, then it doesn't much matter if it provides a reason to prohibit same-sex marriage. I agree that there are simpler explanations of why many people feel uneasy about marriage equality. They might just be blinded by terrible arguments, have cowardly dispositions toward change, or have lingering or unacknowledged religious, personal or cultural animus toward homosexual acts.

I have two responses to the worry that what I have said so far is irrelevant. The first response is that, even if people don't explicitly endorse the Fundamental Conservative Principle, they might have inarticulate feelings that are expressed by the Fundamental Conservative Principle. They might have those feelings alongside any animus they also might have. If the Fundamental Conservative Principle is true, that people have those inarticulate conservative feelings is perhaps not surprising: people can respond to facts about the world without being aware to what fact they are responding. My second response is that, if the Fundamental Conservative Principle is true, you might still think that we proponents of marriage have an intellectual responsibility to be sure that our arguments are equal to opponents of marriage equality who endorse it, even if those opponents are only hypothetical. At the least, by doing so we become clearer about our own reasons for endorsing marriage equality.

—o—

* 3 is not the controversial claim that the institution of marriage would be better or worse if same-sex couples were permitted to marry. 3 is the uncontroversial claim that the institution would be different. We proponents of marriage equality should accept that claim. The difference between marriage as it now is and marriage equality is an important one; it's the one we care about.

   Some libertarians, some feminists, and some socialists might say that 2 is controversial. They might want to deny that 2 is true. I do not know myself how I feel about 2; I am sympathetic to feminist and socialist complaints about the institution full stop, not just the institution as it now is. But I am going to ignore that sort of complaint about marriage in this post.

** Cohen gives his defense of what he sees as an important truth in conservatism in ch.8 of Finding Oneself in the Other (New Jersey: Princeton University Press, 2013). My formulation of the fundamental conservative principle is, I think, Cohen's. But Cohen might deny that the principle supports 1, if he thinks that prohibiting same-sex marriage is unjust. That is because he thinks that injustice has intrinsic disvalue, and for that reason, is not valuable, and so falls outside the scope of the fundamental conservative principle. That gives rise to complicated questions  about whether an institution's injustice vacates its value, and whether something can possess both value and disvalue. In any case: it's likely that I concede more to the opponent of marriage equality than Cohen would. I say that unjust institutions, for all that they are unjust, can have value. As I see things, the injustice of the institution of marriage is relevant in the defense of 6, to which I turn in the second half of this post.