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.