Thoughts from
San Diego on Law, Politics, and Culture

 
Marriage, Schmarriage (Part IV): Edmund Burke Weighs In
By Gail Heriot

When I left off last time, I was saying that there are two conservative arguments that can be made on same-sex marriage--one in favor and the other against. Both can begin with the (undeniable) fact that gay men on average, though not necessarily in individual cases, have many more sexual partners than do straight men or women and the (more contestable, but in my view probably correct) view that in general this promiscuity is not a good thing.

Talking about this issue can be hazardous, so I’d prefer that you go back and read my earlier posts here, here and here. That way if you’re unhappy, you will at least be unhappy over what I’m actually saying, rather than some mistaken notion of it. But to recap: One could argue that the recognition of same-sex marriage will promote promiscuity by removing some of the traditional stigma that once attached to a gay lifestyle, hence increasing at the margin the number of people who engage in that lifestyle (or in a promiscuous heterosexual lifestyle). One could also argue that extremely high rates of infidelity and divorce are likely to result from such marriages, which could end up having negative effects on the already-embattled institution of traditional marriage. The problem is that the opposite argument is plausible too. Allowing same sex-marriage might, to some extent, "domesticate" gay relationships and dampen gay promiscuity by causing a larger number of gays to commit to monogamy. Dampening that promiscuity might also have an indirect effect on straights.

It's worth noting, however, that while one "can make" a plausible argument in favor of same-sex marriage from the standpoint of social conservatism, one doesn't often hear it actually being made (except as part of a Right Coast law professor's musings). And I don't think this is because conservatives are stupid or motivated by ill will. I think it’s something more fundamental to the conservative psyche (and I believe on the whole quite reasonable).

Nobody knows with anything approaching certainty which of the many plausible predictions about the effects of a change in public policy on this issue would actually come true. And anybody who thinks he does is a fool. What we can say is that marriage is one of the most fundamental institutions in our culture. It has a lot to do with how we rear our children (at least when we do it well), how we care for the elderly and infirm, how we pass on property from one generation to the next, and how we love and live our lives. And in the past several decades, it has been under considerable pressure. Rates of illegitimacy and divorce have been high. Celebrity marriage have helped to bring the institution into disrepute. From the standpoint of many conservatives, therefore, the issue is, “Should we risk even the possibility of further harm?”

Amy Wax (U. Penn.) presented a paper at USD's recent Conference on the Meaning of Marriage, which she has tentatively titled, "The Conservative's Dilemma: Social Science, Social Change and Traditional Institutions." The article is still in very preliminary form, so I won't quote from it, but I will summarize one or two of her points as I understand them. She argues that the conservative position against same-sex marriage has not been well-represented in the newspapers, magazines or the academic literature, but that a conservative in the tradition of Edmund Burke might articulate it this way: It is precisely because we can’t be sure of the consequences that we should avoid tinkering with the traditional concept of marriage. (Or as Burke put it, when man "tinker[s] impudently with [tradition] ... [he] is left awfully afloat in a sea of emotions and ambitions, with only the scanty stock of formal learning and the puny resources of individual reason to sustain him." Since we cannot know in advance what effects our social experiments will have, we had better be careful. Incremental change should be strongly preferred over more radical approaches.

All of this seems reasonable to me. When it comes to institutions as important and potentially fragile as marriage, we need to be cautious about the winds of change and humble about our ability to judge how they will affect us. For me, that means that a heavy burden of proof must be upon those who advocate the legal recognition of same-sex marriage, especially when they attempt to do so via the courts rather than the ballot box.

Does that end the matter? Not quite. As I suggested in my original Marriage, Schmarriage post, there are less sweeping approaches that make sense to me, which I will elaborate on in my next (and perhaps final) post on same-sex marriage. In the meantime, don’t touch that dial ....
posted by Gail at 1/20/2005 12:41:00 AM