The Futile ‘Beyond the Pale’ Strategy

Liberal academics often prefer to dismiss arguments in favor of socially conservative views rather than engage them. This is done, in part, on a principled basis: Since conservative views are (supposedly) excessively harmful to minorities, treating arguments in their favor as worthy of consideration contributes to the perception of conservative views as at least somewhat reasonable. But we cannot have that; and so we must exclude conservative arguments from the realm of polite discourse and as entirely unworthy of any reasonable person’s attention. We must treat them as “beyond the pale,” just as we treat, say, racism or Nazism (though, curiously, often not Communism). Witness some of the comments here, for instance. Examples could easily be multiplied.

But the “beyond the pale” strategy isn’t a very good one. The reason: It is very unlikely that conservative views are just going to stop existing in the face of social exclusion.

Assimilating all conservatives to pre-civil-rights-era racism is far too simplistic, and just applying the solution that worked then to conservatives now will not work. This is because, like it or not, there are intelligent, devoutly religious conservatives, who have strong, sincere beliefs, and a little bit (or even a lot) of social pressure isn’t going to change those beliefs. If too much pressure is applied, it will simply make these people leave academia and continue to live their lives and propagate their beliefs elsewhere. (Though, increasingly, liberals advocate the “beyond the pale” strategy in the public and legal sphere too, making this more difficult; but this will not ultimately be successful in eradicating so-called “hatred,” for the reasons mentioned below.)

There are many crucial differences between the case of segregationism and, say, traditional Christian morality: Unlike the case of racial segregationist views, traditional views about morality and religion are not just held in a peculiar geographic location under peculiar circumstances. They are held by many of your colleagues, probably several in your own departments. They are held even more broadly by your neighbors, by the poor and the rich, the educated and uneducated, by whites and blacks, in the north and south, east and west. Also unlike racial segregationist views, traditional views about morality and religion are actually entailed by certain sacred texts, and are an essential part of the world’s traditional religions. (Yes, yes, you could dispute this with alternative interpretations; but sometimes alternative interpretations are flatly wrong, and no amount of ivory tower mental gymnastics will convince the sincere believer.) This is why these views are not restricted to a specific race, class, geographical location, or socio-economic status, and why even a significant academic minority tenaciously continues to exist.

So these beliefs aren’t going to disappear; at most, they will just move elsewhere. Of course, maybe liberals just want conservative beliefs out of academia. And that might be feasible. The problem is that, given how strongly held these beliefs are, it is not worth it for these people to concede and just conform; so, instead, they will just segregate themselves, where they can continue to flourish stably, possibly even better than before. (See, e.g., Thomas Schelling’s discussion of self-segregation in Micromotives and Macrobehavior.)

Keep in mind that “outside of academia” does not mean “no intellectual support.” There is a mistaken perception of conservative voters as mostly poor, ignorant people who simply need more education; on the contrary, more and more resources are popping up for middle-class conservatives to find intellectual backing for their beliefs, and very many people who self-identify as conservative take advantage of them. (Maybe liberals don’t even realize this! But there’s conservative talk radio, conservative podcasts, conservative Youtube channels, conservative news sites, etc. that very many people follow. Hence, the unconscionable fact that over half the country is, and will continue to be, conservative.) Of course, I’m not assessing the quality of these sources, but only pointing out the sociological fact that conservatives who are pushed out of academia will just make their own “academia.” I’m not saying this would be a good thing; just that we are in the territory of “non-ideal theory,” and this is what is likely to happen in the actual world.

I don’t think this would be ideal for conservatism, since conservatism would become ideologically homogeneous, whereas right now conservatives feel a sense of obligation to engage with liberal opponents. And even leaving aside issues about why academia shouldn’t become an echo chamber for liberal views, I don’t even think this is the best strategy if you’re a liberal, since at least with dialogue liberals can influence conservatism for the better, whereas pushing all of them out will just create a more ideological, defensive enemy, with less cooperation going in both directions. So the better strategy would be to have open, constructive dialogue, given the actual circumstances of what is likely to ever happen to conservative views in the actual world. It is simply futile to attempt to treat traditional religious, conservative people as “beyond the pale.”

Ideal Observer

An academic philosopher someplace, somewhere. A dispassionate judge of facts and evidence. Interests include politics, economics, religion, and morals. Obviously a devout Christian, and obviously very conservative.

View All Posts

38 Comments

  1. What might be interesting to explore is why some of these progressivist liberals view such socially conservative viewpoints as “beyond the pale” or outside of “public reason”.

    I have a suspicion that the starting points between these people, namely their philosophical anthropologies, their conception of the good, and of the state and its function, and their very idea of freedom and justice, are contraries. But what’s worse, and what helps generate this conflict the most, is not that they’re contraries; instead, it is that our starting points are also inimically opposed. Consequently, the preconditions for there to be a vibrant “public reason” and an “overlapping consensus” are shot.

    • So, this connects back to something from before, where people on Jack Burton’s article suggested that grad students should play it coy. Apparently, as per the link, one Spencer Case has chosen not to do that. Do you think he made a mistake by playing out in the open at this stage of his academic career? Just wondering what you all think.

  2. The Daily Nouns post you linked features, once again, Justin W. asking for an argument for traditional marriage that will satisfy him (in the comments). I don’t think anyone (besides Justin W., perhaps) is under the illusion that even a perfectly-reasoned argument would satisfy him; but notice the double-standard.
    While tactics like the ones you describe (and tamer ones) abound, where were the arguments FOR gay marriage? I don’t recall any that didn’t already beg the question to be addressed, namely, the definition of marriage. All arguments for changing marriage laws (that I recall hearing or reading) began with the assumption that marriage is simply a social affirmation of a couple’s commitment to each other (or something of that sort). I think most people will agree that gay marriage follows from that definition–but where was that definition ever argued for? If disagreement with this definition is “stupid,” why have I never heard an argument explaining why? You would think that liberals would be eager to educate us on this matter.

    • Read Richard Mohr’s article “The Case for Gay Marriage” if you’re interested in one such argument. (I happen to find it compelling.)

  3. The human race needs babies. Promoting gay marriage is promoting national suicide. When added to other factors, such as the psychological health and stability of offspring not raised within stable marriages by biological parents, and coupled with any other number of unjust policies, such as poo-pooing promiscuity and “experimentation,” which causes a public health crisis, then what you get is a nation and a people heading over a cliff.

  4. Well argued.

    There are a number of excellent contemporary Christian intellectuals/philosophers who are actively publishing new materials (such as Paul Helm and James Anderson just to name a couple), not to mention the treasury of Christian thought that’s been promulgated through the years, so news alert to the leftist liberals – Christian conservatives aren’t going away.

    And ignoring us, though a logical tactic when you have no counterarguments, just won’t do because others are listening, and your silence is deafening.

    There’s also the fact that as a group Christian conservatives, by God’s grace, are multiplying faster than liberals both biologically (check birth rates, we don’t abort our babies and we don’t “marry” same gender spouses which, uh, you know, *can’t reproduce*), as well as spiritually (by conversion via the power of God’s Spirit at work through the Gospel of Jesus Christ).

    Left liberals (especially of the anti-theist variety) love to parade around apostate former “Christians” and publicize their “de-conversion” stories, but that’s a two-way door and Biblically faithful, traditional-morality, culturally conservative Christianity (i.e. actual Biblical Christianity) is growing not only in the U.S., but globally.

    Jesus wasn’t joking when He said “I will build my church, and the gates of hell will not prevail against it.”

    Think about which side you’re on, and what you need to do about it. One side is in the “building” group, and one side is in the “hell” group. Notice there’s no third group.

  5. Yeah I don’t see what the left has to lose by allowing debate. Those of us who are ostensibly intelligent but don’t agree with their views ought to be able to be convinced if their positions are that strong. Wouldn’t that be a good thing?

  6. Let’s allow that there are legitimate arguments against a national-scale mandate that all states must recognize same-sex marriages (i.e., that the Obergfell decision is to that extent mistaken). I’d be willing to allow this, myself. Sound jurisprudence (constitutional interpretation), recognition that there is a venerable tradition as to the role of marriage in society, that kind of thing.

    If academic left-liberals aren’t willing to entertain these arguments, then they’re being intellectually lazy (and disingenuous in calling themselves liberals).

    ON THE OTHER HAND, let’s allow that there are legitimate arguments for equal protection under the law, and that this applies to the ability of same-sex couples to enter into – at the minimum – civil unions. The rationale behind this is essentially that which was advanced by Ted Olson among others, to the effect that the state would be unduly stigmatizing same-sex couples in an age when the phenomenon of same-sex attraction – and, more significantly, romantic life-partner relationships – is more well-understood, and that these relationships can be and often are normal, healthy, functional, etc.

    What I and many others observed about this debate was a conspicuous lack of responsiveness to this aforementioned equal-protection concern from the opponents of *some legal remedy* for the legal stigma against same-sex couples. It didn’t have to be a matter of marriage. If the states that remained opposed to recognizing same-sex *marriage* had nonetheless done the right thing (IMO) and allowed for civil unions at the least, would there have been an aggrieved party that could bring suit?

    It would make a lot more sense if the academic left-liberals thought that stubborn opposition to legal recognitions of same-sex unions in the face of equal-protection concerns was beyond the pale.

    What I am many others observed a lot of, was a one-sided argument from the opponents of same-sex marriage emphasizing the traditional role of marriage and all that, while being stubbornly tone-deaf to what the other side was saying about equal protection, as if the latter simply wasn’t relevant.

    Evidently you authors on this blog are well aware of being on the receiving end of epistemic injustice from left-liberals and other opponents – they won’t give you and your arguments the respect and consideration they deserve – so perhaps you have a taste of how those advancing the equal-protection arguments felt. What they experienced from their opposition was a lot of otherwise decent argument about what marriage is all about, yet with *no* accommodation being offered for satisfying the equal-protection concerns.

    Another issue that the left-liberals much more understandably regard the “cultural conservative” arguments as being beyond-the-pale about: the scope of the rightful powers of the state to prohibit even *contraceptive* birth-control. Were the conservatives in charge of the nation’s jurisprudence from 1964 onward, would states still get to have contraception bans on the books even today? Yikes. (As for finding a basis in the constitution for a right to contraception, try the Ninth Amendment. [As in – barring some way-out-there scenario, I suppose – this area ain’t the rightful business of the state. Same with rights to sexual activities between consenting adults as upheld in Lawrence v. Texas.])

    • There was equal protection under the law when no state recognised gay unions. Homosexuals had exactly the same legal rights as heterosexuals.

      Regarding the other social issues you mentioned, I can’t see anything in the constitution that would prohibit states from banning contraception or homosexual acts. Of course, states shouldn’t do so, but these are questions the constitution leaves to the people. They aren’t settled by the constitution itself.

      • “There was equal protection under the law when no state recognised gay unions. Homosexuals had exactly the same legal rights as heterosexuals.”

        This is a very bad (non-)response to the issues/concerns raised by folks like Ted Olson.

        “Regarding the other social issues you mentioned, I can’t see anything in the constitution that would prohibit states from banning contraception or homosexual acts. Of course, states shouldn’t do so, but these are questions the constitution leaves to the people. They aren’t settled by the constitution itself.”

        Non-responsive to my point about the Ninth Amendment.

      • No, it isn’t a bad response to the issues you raised. It’s simply a fact that everyone had exactly the same rights with respect to marriage before the intervention of the Supreme Court. This was never about equal rights; it was about *extra* rights.

        I failed to detect an argument from the Ninth Amendment. Nobody thought the Ninth Amendment prohibited states from criminalising homosexual acts when it was adopted, so you’re going to have to do better than asserting without a shred of evidence or argument.

      • “No, it isn’t a bad response to the issues you raised. It’s simply a fact that everyone had exactly the same rights with respect to marriage before the intervention of the Supreme Court. This was never about equal rights; it was about *extra* rights.”

        The reason this is a bad reply is that a right of gay people to marry only those of the opposite sex is in effect an empty one for them.

        “I failed to detect an argument from the Ninth Amendment. Nobody thought the Ninth Amendment prohibited states from criminalising homosexual acts when it was adopted, so you’re going to have to do better than asserting without a shred of evidence or argument.”

        Well, they were mistaken at the time about what the states could rightly prohibit. If the Ninth Amendment is to have any bite, we have to acknowledge this.

      • “The reason this is a bad reply is that a right of gay people to marry only those of the opposite sex is in effect an empty one for them.”

        The reason this is a bad reply is that it doesn’t matter if people *perceive* a right to be an empty one. An apathetic citizen might not care at all about politics or government, and so the right to vote, for him, will be an empty one. What follows from this? He still *has* the relevant right, whether he wants to exercise it or not.

        Similarly, for polygamists. Even though they have the same marriage rights as non-polygamists, this right is an empty one for them, since they lack the right to do what they really want to do, which is to have their polygamous unions recognised. Similarly, for people who want to have their incestuous relationships recognised. That doesn’t even mildly imply that they aren’t equally protected by the law.

        “Well, they were mistaken at the time about what the states could rightly prohibit. If the Ninth Amendment is to have any bite, we have to acknowledge this.”

        You need an argument from the text of the Ninth Amendment to the conclusion that states can’t ban people from using contraception or engaging in homosexual activity. You haven’t a good one because there isn’t one.

      • “The reason this is a bad reply is that it doesn’t matter if people *perceive* a right to be an empty one.”

        No; it *is* an empty right given their circumstances.

        “Similarly, for polygamists.”

        Polygamists aren’t similarly situated to couples. (When will opponents of equal protection stop pulling the polygamy, incest, bestiality, etc. cards? It’s tiresome.)

        “You need an argument from the text of the Ninth Amendment to the conclusion that states can’t ban people from using contraception or engaging in homosexual activity. You haven’t a good one because there isn’t one.”

        Admittedly the Ninth Amendment doesn’t speak to specifics. My approach is to look at the best rationale or animating spirit behind the principles of the USA’s founding. I’m a classical liberal and I also find that to be not only the ideal moral basis for political institutions but also the actual moral basis for those of the USA. Lockean-style rights theory, in principle and prima facie, permits activities that some people – even a majority – find immoral, distasteful, etc., as long as those activities don’t endanger the life, liberty and property of others.

      • Also, even though the Ninth doesn’t speak to specifics, in response to the question of what basis there is in the Constitution for a right to contraception, “sodomy,” etc., the Ninth is a perfectly legitimate constitutional basis to invoke.

      • And while there will of course be disagreement over what unenumerated rights there are or might be, that’s all well and good: this is where competing conceptions of political philosophy can have their place in the national conversation without the assumption that the only rights we have are those explicitly stated in the Constitution. The enumerated rights, meanwhile, place a check on what unenumerated rights might be invoked, i.e., those rights cannot be (ahem) construed to deny or disparage those already enumerated. Pretty brilliant move on the Framers’ part, and also an effective means for the Richard Epstein types to push back against purported rights-based claims to others’ income without compensation.

      • Ultimate Philosopher,

        “Polygamists aren’t similarly situated to couples. (When will opponents of equal protection stop pulling the polygamy, incest, bestiality, etc. cards? It’s tiresome.)”

        Probably when we hear a good reason why they are not similar. Please explain.

      • “No; it *is* an empty right given their circumstances.”

        That depends on what it is for a right to be empty. Like I wrote before, to the person who couldn’t care less about politics or government, the right to vote may be ’empty’ in whatever sense it is you mean. But nothing interesting follows from this. What you need is an *argument* from the premise that ‘If X is an empty right to S, then S gets to have some non-empty right similar to X that S wants,’ or something similar. But you haven’t offered even the hint of an argument for your claim. As of right now, your assertion that ‘the right to marry was an empty right to homosexuals’ is utterly unremarkable without some connecting premise.

        And, by the way, you haven’t even disputed the obvious fact that there *was* equal marriage rights recognised in the law. Some homosexuals and heterosexuals alike had no desire whatever to exercise that right. That doesn’t change the fact that both groups had the *same* legal rights. So where’s the equal protection violation? Once again, this is a matter of wanting *extra* rights: in addition to the right to marry a person of the opposite sex, homosexuals wanted the right to marry a person of the same sex. That’s fine, but we shouldn’t pretend that there wasn’t already equality in law. An example of inequality would’ve been a law that excludes homosexuals from the institution of marriage. But they weren’t excluded in law anymore than I am excluded from voting because I choose not to participate. And many homosexuals *did* marry.

        I’ve failed to detect an argument from the Ninth Amendment to the proposition that it’s unconstitutional for states to enact anti-sodomy or anti-contraception laws. Perhaps you’ve got one. Present it, please.

      • Ultimate Phil “Also, even though the Ninth doesn’t speak to specifics, in response to the question of what basis there is in the Constitution for a right to contraception, “sodomy,” etc., the Ninth is a perfectly legitimate constitutional basis to invoke.”

        I don’t see that at all. The 9th Amendment prohibits the use of the Constitution to place restrictions on unenumerated rights of the people. It says nothing about prohibiting states from placing restrictions on any individual rights. So even if there were some individual right to contraception etc. which the US Constitution could not be used to restrict, a state might have overriding rights such that individual states could restrict such individual rights. (if we think that some rights can trump others).

    • Thanks for this comment. I agree with you that it is not clear why specifically same-sex *marriage* would be necessary as opposed to merely civil unions.

      With respect to your other concerns, I would simply add to Conservatrarian’s comments (which I agree with):

      First, the reductio that applies to same-sex marriage applies equally to civil unions:

      If the state is going to legitimize homosexual relationships by civil union, why the restriction to two, unrelated adults?

      And when you add the substantive justification for “sexual equality” — that sex is merely a way of expressing intimate friendship, or a way of playing, or a means of pleasure — it is even worse: Why the restriction to adults; why the concern for exclusivity; why the concern for preserving the relationship over time (What justification for, say, alienation of affection laws? Or state-sponsored couples counseling?) — and *why at all* in the first place? After all, what business or interest does the state have in fostering “intimate friendship” and “pleasure” with an entire legal-cum-entitlements institution?

      So “marriage equality” advocates have no principled basis to restrict the benefits to monogamous, unrelated adults for the purposes of a life-long exclusive commitment. Or, to put it negatively, they have no principled basis for the ruling out of polygamy, adultery, divorce, incest or even pederasty as morally or legally required. This is not a slippery slope argument — it is an argument asking for some *principled basis* for the usual restrictions, plus the observation that there is no such justification forthcoming from the “marriage equality” side, which reduces this view to absurdity; it is unable to explain the requirements of marriage, and so it is a flaw viewed of marriage.

      But then it’s not clear why this argument could not be applied to civil unions as well.

      Second, an argument from it not being within the proper bounds of the state to interfere with private conduct does *not* imply it must take no moral-legal stance on the conduct in question, let alone *endorse* such conduct.

      Note an important ambiguity in your phrasing of “prohibiting contraceptive birth-control” and “contraception bans.” Does this mean prohibition of the wide-spread *public sale, promotion, and especially tax-payer funding* of contraceptives? (This latter is especially relevant today, as is obvious from recent demands that the government fund peoples’ contraceptives.) Or does this mean prohibition of the *use* of such contraceptives by couples in private?

      Even if this *were* a constitutional question (as Conservatrarian points out, it is not), note that there are *two questions* and that the justification for the one does not apply to the other:

      (1) On the one hand, there is the question of governmental *interference* in the immoral sexual conduct of people.

      (2) On the other hand, there is the question of governmental *recognition* and *promotion* of immoral sexual conduct.

      Griswold v. Connecticut in 1965 ruled that the government cannot make it illegal for spouses to use contraceptives in private. This ruling was decided on the basis of the first point: The limits of governmental interference in truly private conduct. On the other hand, Lawrence v. Texas in 2003 overturned Texas’s anti-sodomy law on the *entirely faulty* basis of its being “demeaning” and “imposing a stigma” on homosexual activity. But there is nothing in the Constitution whatever that requires the government to not “impose a stigma” or to “respect” in this sense a certain type of immoral activity. So even if there is a constitutional justification for allowing contraceptive use or allowing homosexual activity on the basis of (1), it does not follow that the law must endorse such things with an entire legal institution on the basis of (2).

      • First I’d like to ask if you are familiar with the case for marriage equality put forward by Ted Olson. The case he makes has to do with the stigmatizing of same-sex relationships in an era when such relationships are well-understood not to be unhealthy, dysfunctional, abnormal, socially destructive, etc.

        The status quo prior to the Obergfell decision involved (to quote from the wikipedia article at https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#Effects_of_same-sex_marriage )

        Compared to similarly situated opposite-sex married couples, same-sex couples faced the following financial and legal disadvantages:
        Legal costs associated with obtaining domestic partner documents to gain legal abilities granted automatically by legal marriage, including power of attorney, health care decision-making, and inheritance[198]
        A person can inherit an unlimited amount from a deceased spouse without incurring an estate tax, but is subject to taxes if inheriting from a same-sex partner[197]
        Same-sex couples were not eligible to file jointly as a married couple and thus could not take the advantages of lower tax rates when the individual income of the partners differs significantly[197][i]
        Employer-provided health insurance coverage for a same-sex partner incurred federal income tax[197]
        Higher health costs associated with lack of insurance and preventative care: 20% of same-sex couples had a member who was uninsured compared to 10% of married opposite-sex couples[198]
        Inability to protect jointly owned home from loss due to costs of potential medical catastrophe[198]
        Inability of a U.S. citizen to sponsor a same-sex spouse for citizenship[198]

        And there are several other sorts of impacts, related to mental and physical health, covered in that hashtagged link above, which I won’t quote here but will invoke as highly relevant.

        Now, if the conservative position doesn’t assign much significance to these points, as problems in need of remedy, then there’s a big problem with that position, whatever the concerns and issues you’ve raised.

        To address those issues:

        “If the state is going to legitimize homosexual relationships by civil union, why the restriction to two, unrelated adults?”

        The equal-protection arguments rested upon treating like cases alike.

        “And when you add the substantive justification for “sexual equality” — that sex is merely a way of expressing intimate friendship, or a way of playing, or a means of pleasure — it is even worse: Why the restriction to adults; why the concern for exclusivity; why the concern for preserving the relationship over time (What justification for, say, alienation of affection laws? Or state-sponsored couples counseling?) — and *why at all* in the first place? After all, what business or interest does the state have in fostering “intimate friendship” and “pleasure” with an entire legal-cum-entitlements institution?”

        Apparently when I put this in between hyphens: “more significantly, romantic life-partner relationships,” it basically went unnoticed. :-/ That was the focus of Olson’s case.

        “Second, an argument from it not being within the proper bounds of the state to interfere with private conduct does *not* imply it must take no moral-legal stance on the conduct in question, let alone *endorse* such conduct.”

        Well, if we’re going to get into more fundamental matters of political philosophy, I’ll state a reasonable classical-liberal-inspired position: the primary moral-legal interest the *state* has vis a vis human relationships is one of ensuring that people are secure in their life, liberty and possessions. (There’s also something something pursuit of happiness, a fundamental interest individuals have – something that is obstructed by the sorts of effects mentioned in the hashtagged link, along with equal-protection.)

        Unfortunately for numerous versions of conservative political philosophy, this implies a strong “neutrality” by the state on matters pertaining to how people use their liberty vis a vis their virtue/flourishing.

        By no means does it imply a neutrality when it comes to the cultural institutions, community organizations, the spiritual life of the country, the sorts of things that certainly have a pervasive influence and effect on people without the need for the state to go beyond the bounds of securing people in their person and possessions. (I’ll note that the Left

        “Note an important ambiguity in your phrasing of “prohibiting contraceptive birth-control” and “contraception bans.” Does this mean prohibition of the wide-spread *public sale, promotion, and especially tax-payer funding* of contraceptives?
        (This latter is especially relevant today, as is obvious from recent demands that the government fund peoples’ contraceptives.) Or does this mean prohibition of the *use* of such contraceptives by couples in private?”

        From my classical-liberal vantage point, there is a prima facie right to capitalist acts between consent adults, but not public subsidizing of those acts. So there’s the prima facie right to use as well as to commercial transaction.

        “Even if this *were* a constitutional question (as Conservatrarian points out, it is not), note that there are *two questions* and that the justification for the one does not apply to the other:

        (1) On the one hand, there is the question of governmental *interference* in the immoral sexual conduct of people.

        (2) On the other hand, there is the question of governmental *recognition* and *promotion* of immoral sexual conduct.”

        My point is that it’s not the place of the *state*, among the various human institutions, to pronounce on what is immoral, beyond its protection/security function. (Again, this isn’t an endorsement of moral neutrality full stop as far as other social institutions are concerned – and, it would seem, as far as many of those on the Left are concerned.)

        “Griswold v. Connecticut in 1965 ruled that the government cannot make it illegal for spouses to use contraceptives in private. This ruling was decided on the basis of the first point: The limits of governmental interference in truly private conduct. On the other hand, Lawrence v. Texas in 2003 overturned Texas’s anti-sodomy law on the *entirely faulty* basis of its being “demeaning” and “imposing a stigma” on homosexual activity. But there is nothing in the Constitution whatever that requires the government to not “impose a stigma” or to “respect” in this sense a certain type of immoral activity. So even if there is a constitutional justification for allowing contraceptive use or allowing homosexual activity on the basis of (1), it does not follow that the law must endorse such things with an entire legal institution on the basis of (2).”

        It is coercive legal intrusion upon private acts between consenting adults. I would find a prima facie constitutional case against the state having any rightful power to do this, and that constitutional basis can be located in the Ninth Amendment. Of course, given my classical-liberal political philosophy, my conception of what unenumerated rights are acknowledged by the Constitution will be in accordance with that political philosophy as distinct from some other political philosophy that would affirm other rights (having to do with something other than prohibitions on coercive interference).

    • But wasn’t the equal protection objection answered? The request for equal protection or treatment presumes analogous circumstances with some of those persons already protected. This presumption was denied with reason, was it not? I think so.

      Of course, you might not like the reasons, finding them incredulous, or “beyond the pale”, but that is not grounding to think that the equal protection concern has been ignored. Indeed, it has not.

      • “But wasn’t the equal protection objection answered? The request for equal protection or treatment presumes analogous circumstances with some of those persons already protected. This presumption was denied with reason, was it not? I think so.”

        Wasn’t denied by Justice Kennedy. The analogous circumstances would be those I have referred to in another comment or two: the romantic life-long commitment between two adults, in a day and age that such commitments of a same-sex sort are well-understood to not be dysfunctional, destructive, etc. One gets the impression that many social conservatives have not caught up with present-day realities in this regard. (It would appear that many of these same social conservatives, given unwarranted outdated fears, would prefer that children remain un-adopted than to be adopted by same-sex couples.)

      • Dear Mr. Littlejohn,

        I’ve changed the name you attempted to use. We understand that you may idolize us, but you are not in fact a member of this blog. Perhaps one day we’ll invite you when you come to your senses. In the meantime, please don’t pretend to be us.

        http://i.imgur.com/2eScwVe.png

      • Well played, Natural Lawyer. I thought I’d slip it past but your new comments moderation caught me. (I still think we can agree that Ultimate Philosopher is cleaning house. The name is apt.)

      • Mr. Littlejohn, um, I just read through the comments here. Ultimate philosopher is having a bit of trouble. Even granting that a round was won, the fight definitely wasn’t. Surely you can see that?

      • Hi UP

        Sorry we’re teaming up on you like this. I think we’re all just excited to have some discuss these subjects philosophically for a change, as opposed to just yelling, “you’re irrational!” Huge kudos to you for engaging appropriately with people you don’t agree with!

        Personally, I’m more interested in arguments related to the ethics of something than arguments about the legislative status of that thing, as they aren’t necessarily identical considerations. My ethical framework is divine command theory, so it’s not hard to figure out what that makes me think regarding this issue.

        Politically, I consider myself a recent convert to “classical conservatism” and you rightly pointed out that your arguments stem from a classical liberal perspective. I also think we’d both agree that classical liberalism is the political framework that inspired America’s founding. I personally am growing to believe that this was a mistake, and you’re likely to think that it was not.

        As I said before, I’m more interested in the ethical question and would rather discuss that. But I do want to restate a couple of points about the legislative question that I think you may have misunderstood with respect to some of your previous interlocutors. Conservatarian pointed out that, prior to the legalization of SSM, everyone had equal rights to marriage already. You responded that these were “empty rights.” Now as I understand them, the claims go something like this. Conservatarian’s claim seems to be that the set of ‘individuals whom one can legally marry’ was an identical set, regardless of whether the person in question is heterosexual or not. Your reply about emptiness seems to be to say that this right was empty for same-sex attracted individuals (SSAIs), and I think the reason was because SSAIs do not desire to do what this right allows them to do. Obviously that in itself is not problematic, as atheists don’t want to practice religion, so their religious freedoms are ostensibly empty, but that doesn’t seem like a good argument against relig. freedom. Now I think you would add that what is problematic in the marriage case is that, concomitantly, SSAIs DO have a desire, and that this desire picks out some thing that they were NOT legally allowed to do, whereas that is not the case for atheists. Am I understanding you correctly that this is the gist of your argument?

        I would reply to that by stating that I think then the term “equal rights” is misleading. They did have equal rights in the sense that their rights were equal relative to the rights of other individuals. And that seems to be the commonsense way of thinking of two things as “equal.” Instead, I think you’ve required us to shift to thinking about equality as “equality relative to one’s DESIRES, not relative to the rights that others have as such.” If that is the case, that seems to me to ultimately be an argument for anarchy, as I would think that any law discriminates (in this desire-based sense of inequality) between those who desire to keep the law and those who desire to break it. (I could go into more detail here and will if the need arises, but will leave it for now for brevity’s sake)

        The other thing that I wanted to discuss was the role that seems to be played in your account by “disadvantages” that SSAIs experience in coupled, non-married relationships. Is this a legislative or moral feature for you? I’m not entirely sure why it should impinge upon morality, but that’s probably because I don’t agree with liberals that morality = a combination of harm/care concerns + “fairness” concerns. I don’t see exactly why A) This differs from an appeal to pity and B) Why these sorts of disadvantages might not be present in other individuals or groups whose desires are to do something which in some regard runs afoul of the law. If you can satisfactorily answer A) and B), then that still leaves me wondering C) Why should we think these form sufficient conditions for any particular ethical/political conclusion?

        Thanks for a great conversation!

      • I’m not now concerned with what Kennedy denied. The point was that the objection was answered; and hence, you can’t act as if it were ignored, nor even that conservatives were “tone-deaf” to the concerns about equal protection.

        Here you claim that same-sex romantic, life-long commitments between two adults is “well-understood not to be dysfunctional, destructive, etc” and that many socially conservatives have not “caught up” on this. Allegedly, these are the analogous circumstances upon which the claim for equal treatment is made. But, you seem to have missed the point: These are among the claims that many socially conservative people deny with reason. Thus, again, as I say, you can’t pretend as if they did not address the claim to equal protection, nor can you just simply presume that social conservatives need to “catch up”.

      • Ultimate Philosopher,

        I think many of us here would contend same-sex relationships are not analogous to opposite-sex relationships in the relevant sense of why the state has an interest in regulating and endorsing particular personal, emotional arrangements over others — namely, the latter set of relationships produces the next generation while the former set does not. It’s not at all clear why the state has any business interjecting itself in our various forms of friendship on the grounds they’re emotional and or romantic. That seems the proper purview of therapists, couples councilors, friends, pastors, not the government, and to assert the contrary, as you do, seems antithetical to any classically based liberalism that limits the reach of the state (more on this later). Appealing to the nebulous “romance” and emotion between homosexuals opens your position up to a host of reductio counterexamples that need not include the “parade of horrors” e.g. bestiality, incest, polygamy, necrophilia, pedophilia, such as the personal relationships between roommates or lifelong childhood friends. The challenge you face is how you distinguish why these other functional and well understood relationships don’t deserve recognition but yet same-sex relationships do.

        Speaking of functionality and what’s destructive — are you sure homosexual relationships, by in large, are not dysfunctional and destructive? Aren’t you forgetting the higher rates of infidelity and sexually transmitted diseases between homosexual men? What about the high rates of domestic abuse between homosexual couples that defy mainstream news attention? What about the high rates of alcoholism, eating disorders and depression in the LGBT community? Are you going to posit alleged bigotry and hatred as solely responsible for these seemingly self-afflicted problems? Will you ignore such self-destructive fetishes like Bug-chasing? The homosexual population is not nearly as monolithic as you imply; there is a very subversive subculture that still comes out in Pride parades featuring ball gags and leather that hardly seems interested in monogamy and domestic well-being in regard to the rearing of children.

        Moreover, where does this “well-undestood” perception about Adam and Steve with Lillith and Eve being no different than Adam and Eve come from? Mind you, I’m being pedantic, but perceptions can be false. Appealing to widely-held belief, as you claim Olson does, instead of actual ontological being, i.e. the demographic reality of homosexuality, as a premise in an argument for same-sex marriage seems fallacious from the get-go. You and Olson conflate the doxastic/epistemic with the ontic. I certainly hope you’re not downplaying the years of media propaganda and its influential tugging at the heart strings and sanitizing same-sex relationships as no different than that of a traditional, one father and mother household.

        I remind you that appealing to the limbic system, as mass media largely does, is not the same as rational argument, especially given that little fictions of homosexuality, like morally-preening Cheerios commercials (“I am your father; No! I am your father”), conveniently leave out that romantic coupling, at rock bottom, generally involves expectations of sexual intercourse. These media vignettes include no reference to sodomy and whatever sorts of carnal acts homosexuals engage in to approximate the sort of intimacy involved in heterosexual, penis-in-vagina sex. Forgive my crassness, but I feel crudeness is most illustrative of what I mean here — how do you feel about cock in ass? Are you really committed to the proposition that there is no qualitative and or moral difference between that the coital union between a man and woman and sodomy between two persons of the same sex? If so, what principles or evidence justify this moral equivalence? I suspect you have nothing but such insipid sophistries like “#lovewins” or “#fuckh8.” Since you started speculating about “fears,” — fired the first shots, so to speak — I’m justified to psychoanalyze in return.

        You opine: “(It would appear that many of these same social conservatives, given unwarranted outdated fears, would prefer that children remain un-adopted than to be adopted by same-sex couples.)” This is irrelevant to the question of whether we should recognize same-sex partnering as married like opposite-sex partnering. But I’m glad you bring up the children, though I contend appeals to same-sex couples adopting as ad hoc in regard to the truth that children have a right to their biological parents and those same parents have a reciprocal right to their progeny. Additionally, there is a public good that is enforced by our institutions affirming this right. Obergefell’s decision implicitly guts it, engendering the disruption of our civilization’s greater social cohesion by doubling down on the mistake of rejecting the necessity to keep mothers, fathers and their offspring together as families. Anthony Kennedy’s reasoning, now enshrined institutionally, will have ripple effects across national culture, thereby influencing behavior. By treating them as equal, Obergefell entails that the procreative capacity that differentiates opposite-sex couples from same-sex couples as irrelevant. This understanding instills a further understanding of the concomitant institution that is generated by marriage — the family. No longer is family recognized and defined by objective blood ties between biological parent and child but is supplanted by subjective emotion and will.

        This change should perturb any self-professed classical liberal such as yourself who is familiar with Alexis de Tocqueville’s “mediating institutions” and Edmund Burke’s “little platoons.” Mediating institutions, according to these classical liberals, serve as a bulwark against the meddling of government as well as rendering the individual more independent of and less reliant on the state. In other words, they keep persons free in the negative sense of liberty. One of these mediating institutions is, of course, the family. But in a post-Obergefell world, the family is a function of arbitrary voluntarism not objective blood ties. So there is no objective basis anymore that the state has to recognize or respect when it comes to the family. It truly now is a social construct that is feeble and susceptible to the manipulation of empowered bureaucrats.

        For example, if you object to say public school that taking your preteen on field trips to sex shops as part of the new orthodoxy’s sexual education curriculum, well, what can be leaned upon to stop Department of Education apparatchiks from ignoring your pleas when they only care about implementing what they believe is the greater good? Additionally, claims about those being your biological children likely will prove increasingly ineffectual in the litigation of child custody or visitation battles because parental rights are diminished. By cheering same-sex marriage as an expansion in liberty, the masses have tacitly forfeited the right to their children and indefinitely invited the vampire Leviathan into their homes to curtail it for future generations.

        What’s worse is that the impetus for state’s interference is hastened by Obergefell reinforcing, by implication, the normativity of single motherhood and out-of-wedlock births. This follows from declaring marriage as fundamentally nonprocreative — people will further not be chastened to procreate inside its institutional bounds. Who will single mothers then instead marry? That aforementioned vampire state. Essentially, Kennedy, by judicial fiat has paved the path to actualize the horror of Stephenie Meyer’s “Twilight” series on the country. Instead of Robert Pattinson playing the cold, distant Edward Cullen, it’s welfare checks and food stamps. This is only scratching the surface when it comes to “marriage equality” ramifications.

        To paraphrase that famous classical liberal Benjamin Franklin: Any society that gives up a little liberty for equality — mind you, a false equality — deserves neither and loses both. Does that sound like the mere irrational fear-mongering of social conservatives to a classical liberal like you?

  7. UP writes:

    What I and many others observed about this debate was a conspicuous lack of responsiveness to this aforementioned equal-protection concern from the opponents of *some legal remedy* for the legal stigma against same-sex couples

    Given the initial concessions, I simply deny that there are further concerns raised by equal protection issues.

    Considerations of equal protection only arise if heterosexual and homosexual unions are alike in relevant ways. But if we’re going to grant the claim that there are legitimate arguments against same-sex marriage — which you seem to be doing — then I don’t see how there can be any room for equal protection arguments of *any* kind. Suppose the Girgis-Anderson-George argument is sound. If that’s the case, then homosexual relationships and heterosexual relationships are not similar in the ways required for the equal protection argument to work. There would be no grounds for any kind of additional legal remedy, even granting that these remedies don’t have to be marriage. After all, the whole point of the GAG approach is that homosexual relationship by their very nature don’t deserve legal recognition. So it seems to me that the only way you can run the equal protection argument is if you abandon your initial concessions.

    The challenge, then, would be to show that same-sex relationships fall into another category of relationships that the state has an interest in regulating. I don’t see a way of making that if you’re willing to grant that there are legitimate arguments against SSM — since a lot of points against SSM would probably count in favor of whatever alternative you propose (be it civil unions or whatever). Simply throwing around the term “equal protection” won’t do.

  8. I don’t know what debate Clayton is reading if he thinks UP is “cleaning up.” UP’s position is dead in the water unless he can give us a convincing response to this rebuttal from Conservatarian:

    “That depends on what it is for a right to be empty. Like I wrote before, to the person who couldn’t care less about politics or government, the right to vote may be ’empty’ in whatever sense it is you mean. But nothing interesting follows from this. What you need is an *argument* from the premise that ‘If X is an empty right to S, then S gets to have some non-empty right similar to X that S wants,’ or something similar. But you haven’t offered even the hint of an argument for your claim. As of right now, your assertion that ‘the right to marry was an empty right to homosexuals’ is utterly unremarkable without some connecting premise.”

    This is the crux of the matter. Homosexuals had the right to marry under the old arrangement, because nobody was barred from access to marriage by virtue of being gay. What gays lacked was the desire to exercise that right. But not wanting to exercise a right does not entitle you to a similar but distinct right that you do want to exercise, nor is it sufficient grounds for going back and revising the scope of the original right in a more expansive fashion. As a matter of basic principle, desires for social goods and legal entitlements do not cause the rights that would secure them to pop into existence. The liberal case at this point is little more than reasoning backwards from goods to rights- pointing out the unavailability of certain social goods to homosexuals and retroactively declaring that they have the rights which would make them available, while at the same time completely ignoring or downplaying the original justification for attaching rights and privileges to heterosexual marriage in the first place.

  9. The arguments are getting better and tougher from what I’ve seen before; congrats due to Pooh Bear in particular. While I process them (and the Mohr argument mentioned near the top of the thread which I located here http://scholarship.law.nd.edu/ndjlepp/vol9/iss1/8/ , in addition to all this other reading I’m trying to get in – Mortimer Adler, anyone? 🙂 ), I do want to raise a couple or so points:

    Often times I see folks in a debate invoke worst-case scenarios (not altogether different from an undesirable slippery-slope) as applied to the other side and best-case scenarios when applied to their own. (I see this a *lot* from socialists arguing against capitalism; from sweatshops – worst-case scenario – being the paradigmatic example of capitalism in their minds, they then project a very desirable socialist alternative, something paradigmatic in their minds but in essence a best-case scenario involving angels or something nearly that. So you’ll have examples like the USSR rejected by the socialists as not real socialism but in fact some variant of capitalism (often “state capitalism”) – since it was pretty bad, right? – and then when “neoliberal globalism” raises living standards worldwide they home in on whatever sweatshops there are and the draining of the developed-world middle class. It gets a little tiring after a while trying to find socialists who will be objective about these things….)

    The worst-case scenario envisioned by opponents of SSM seems to run along the lines, more or less, of a breakdown of society’s moral fabric. (Wait, hasn’t this been happening plenty already, without the aid of legalized SSM?) If the courts (not to be regarded as synonymous with society/culture/morals/etc., right?) are indifferent between the traditional marriage arrangements and SSM ones, then some crucial and vital link with tradition that keeps things stable has been severed, and social/moral/cultural anarchy looms around the corner.

    The best-case scenario is the one envisioned by proponents of SSM who will treat as a paradigmatic instance of the sort of justice/fairness they’re pursuing something like the lifelong romantic (is that the best word here in any case?) commitment of a George Takei and his life-partner Brad. Decent people, lots to contribute to society, they pay their taxes, etc. They experience negative stigma-like, alienation-like associations from a political-legal order that tells them that their committed relationship is unworthy of the same recognition that traditional man-woman couples experience. They’re not out there fornicating at random, no cock-in-ass even (as George revealed on Howard Stern’s show), (no mud on the helmet or ruptured membranes there, right Pooh Bear? 😀 ) , not the usual stereotypical gay bath-house stuff. Best-case scenario.

    There is some grain of truth in the arguments of both sides, and the question is what we are going to do with those grains of truth in reaching a satisfactory dialectical reconciliation. The proponents of SSM don’t believe that the worst-case scenario (moral/cultural breakdown, anarchy) is going to come about by virtue of the Obergfell decision. (Wouldn’t it be nice if both sides were to place bets on this? They’d proceed with utmost caution in their claims or predictions, IMO.) Taking the best-case instance of SSM proponents, the conservative Republican Ted Olson, one would assume that he considered the moral-breakdown concern and just didn’t see it.

    I’ve mentioned I’m a classical liberal (I don’t mind the “libertarian” label either, although I also just love “liberal” as Mises and Hayek used the term). At the same time, if these labels are to have real meaning, I find myself sympathetic to what is the best in the conservative tradition, particularly in regard to the need for a stable moral-cultural order as crucial to a decent political order. More than anything, I call myself an Aristotelian. (I have a book published, see, with the term “Aristotelian” in the title….) That would be the full framework within which I approach this entire discussion. (How would Aristotle apply his dialectical method to reconciling these two opposing sides of the SSM debate? Whatever the approach and outcome would be, I think it would be AWESOME.) I advocate a rationality-centric virtue ethics. At the same time I have a distinctly “modern” view about the role of the state, one limited to the protection of Lockean rights. (Maybe some of you have read the works of Den Uyl and Rasmussen [e.g., ‘Norms of Liberty’ subtitled ‘A Perfectionist Basis for Non-Perfectionist Politics’], which I find myself in roughly 99.9% agreement with.)

    Someone above mentioned the mediating institutions between individual and state. I’m really, really big on those institutions when it comes to promoting some suitably general as well as specific vision of the good life. And, seeing culture and morality as upstream from politics (the story here is nonetheless complicated; there is reciprocal causation going on, though I think more at the short-term level than the long-term), I think the role of the state in shaping that good life is considerably restricted, and inasmuch as it does shape it, I am very skeptical that it’s more than seldom for the better. I think freedom of the individual to decide his or her own course in life is usually better in a number of ways than the state purporting to make those decisions for the person. What’s more, I think it’s the mediating institutions that have much better capacity to influence these individual decisions, and for the better. I think we ought to adopt the vision of the best of the American founders – I’m thinking here of Jefferson and Franklin – when it comes to having a virtuous citizenry capable of keeping a republic, along with a government that (all else being equal) governs least.

    From that perspective, the institution of marriage might best be left up to the mediating institutions to foster and shape, and leave the role of the state to a minimum. That’s not quite the way it is right now, however; this is why equal-protection kinds of arguments come into play. As long as the state is going to treat married couples in a given way, the equal protection argument says that George-and-Brad should receive the same treatment.

    I’ve suggested that the conservatives in this SSM debate could make more of an effort to reach a dialectical reconciliation with their opponents, by offering some steps toward remedying the disadvantaged position that life-partner committed same-sex couples experience. Is there nothing to offer in that regard vis a vis the previous status quo? Is it “tough shit” for same-sex couples when it comes to those effects/disadvantages listed here https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States#Effects_of_same-sex_marriage ? I’ve *still* yet to see the opponents of SSM here or elsewhere address this problem. We do hear a lot about the bad things and problems that would/might occur as a result of Obergfell, and yes, the proponents of SSM need to address these issues better than they have (I don’t think that contemporary liberals with their limited fairness/harm ethics and all-encompassing neutrality about conceptions of the good life have the means to address these concerns head-on; I should specify I’m referring here not to the best-case-scenario liberals (Nussbaum the neo-Aristotelian?) but the middling ones who are driving the narrative of the Left today). At the same time, it’s only fair and right that the conservatives acknowledge the stigma-effects of same-sex couples who (e.g.) spend much time/resources “obtaining domestic partner documents to gain legal abilities granted automatically by legal marriage, including power of attorney, health care decision-making, and inheritance” (to quote from the above link).

    I don’t think the American people are mean and ugly, but these stigma-effects are mean and ugly, and it would be mean and ugly to continue on like there isn’t a problem, *whatever else* one might think about SSM.

    I’ve gone on plenty here so I’ll leave it at that for now, although one sorta-sidenote about the Ninth Amendment since it came up: you’ll have a hard time making the case that states’ rights are the rights that trump Lockean individual rights and not the other way around. 😉

  10. I wonder if any conservatives here would agree with UP on this. Maybe I am taking UP’s argument in a direction (s)he doesn’t want it to go, but is it reasonable to desire the state to remove itself from the “marriage business”? If it is agreed upon that civil unions provide gays and lesbians with equal rights involving taxes, health issues, and other legal bondages, then what exactly makes a conservative different from a classical liberal in this regard? I suppose my question should be asked in this way: why does a conservative believe that the state has a reasonable imposition into our lives when it comes to any single case of matrimony? Why not reverse the argument and force all heterosexual marriages to be civil unions?

    I assume the answer will involve the state having a justified interest in the development of its citizens, but as it stands now, single persons and gay couples can adopt children, not to mention children being raised by single biological parents, so marriage per se does not represent the only means by which childhood development occurs. So it would seem slightly odd to use this as the only justification for keeping the institution of marriage in the hands of the state. I am curious to hear other arguments for this.

    P.S. Note I am not referencing the cultural institution, so do not mistake me for trying to rid any religious institutions of any right to marry couples.

Comments are closed.