If they were, they would find in the annals of history some formidable allies, among them Plato and Aristotle.
But the the popular case against recognizing same-sex unions as marriages has run aground of bad presuppositions, bad language, and bad ideas. Conservatives lost the intellectual battle before they started. They entered the coliseum and promptly stabbed themselves.
Their first mistake was attempting to use sociological arguments in favor of sexually complimentary marriage.
Sociology is a child of the Enlightenment and it will always be loyal to she who bequeathed its operating maxims: that humans are discrete units, that the most important conclusions are reached by statistical observation, and that there is no such thing as an inherent, stable human nature.
I must constantly remind that I am not the Enlightenment's (or sociology's) enemy.
So, back to conservatives using sociological arguments. There are basic problems on the face of it.
- It takes a lot of effort for a conservative to persuade progressives that his information comes from credible sources. Short of studies published by the competition's own favorite outlets, any other use of studies is largely wasted effort. Progressives understand that studies are easy to distort, whether by poor methods, obscuring of relevant data, loose interpretation, or simple human error. However, they are only likely to raise such matters when said studies arrive at conclusions that challenge the Enlightenment's (or the sexual revolution's) presuppositions about human nature. Ultimately, if any studies are cited that might favor such conservative shibboleths as valuing two-parent homes, delaying sexual experience in youths, marriage prior to cohabitation, or natural family planning, the result will almost always be a side-tracked debate about the reliability of sources.
- Presumably, on matters of family and sex, conservatives would like to see some norms established for the long term. This renders questionable the strategy of basing their arguments in sociology, whose results are constantly changing. Please note that I do not thereby question sociology's usefulness in general--only its usefulness for establishing long-term norms. What sense does it make for conservatives to argue that sex-complimentary marriages are statistically better for children? Could anything be more difficult to prove in a legal setting? If ever there was a donkey jawbone wielded against the Philistine army, that's it (in which case, God help you).
- Sociology alone makes no value judgments. Placing one's fate in the hands of sociologists (because, for the moment, they seem to be allies) is a bit like mistaking a wind-vein for a compass.
Sociological studies of marriage are as necessary as digital thermometers inside of a computer. One must know a computer's optimal temperature before a thermometer becomes useful. Sociology, like a thermometer, is a "dumb" measuring tool, not a basis for arriving at overarching conclusions. Taking the analogy even further, the technician might be monitoring the temperature of a dozen laptops and watching them reach 95°C and above, and proceed to shut off. If that technician were like some of today's sociologists, he might say, "Oh, I guess that this is the new standard of laptop behavior! We should issue cautions to consumers not to start any computer work they can't finish or save within 15 minutes."
In other words, too many sociologists measure trends in human behavior, but will not name the proverbial overheating when they see it. They understand correctly that sociology itself cannot make value judgments (any more than a thermometer can). But some of them write as though every new trend of human behavior is seen as a "new standard". But trends are trends. Surely there is a deeper basis for action and value-forming than the mob.
Progressives in the "gay marriage" issue have been trumpeting the weakness of conservative sociology-based arguments for a long time. That weakness may be the single most important drive behind Judge Walker's striking down Proposition 8. Conservatives allowed themselves to be cornered into a position of relying on a harm-benefits analysis, and they predictably lost. They will continue to lose if they continue to play that game.
This is unfortunate. Progressives are guilty of no small amount of card-stacking when it comes to matrimonial and reproductive issues in the last fifty years. Elizabeth Anscombe understood in 1972 that widespread artificial contraception removed the keystone from sex's social benefit--the integrity of the triad of "sex-marriage-family". Pope Paul VI understood the ripple of social repercussions even earlier. In the present day, looking back, Jean Twenge's "Generation Me" sites studies documenting the slink of generations into divorce, learning disability, and mental illness.
So if sex-complementary marriage today does not shimmer in sociological terms, this should come as no surprise, least of all to those who have favored its continued dissolution in the individualistic waters of the Enlightenment. What is surprising is that marriage's struggles are now used by progressives as evidence against its deserving distinct public respect, relative to its novel counterpart. Well, say I, of course the dog doesn't walk anymore--you kicked it!
Unfortunately, this narrative--that the sexual revolution ruined marriage before it offered it to same-sex couples--will win no points on a legal front. Sociology cares not for whatever matrimony may have been; history and narrative are not its trade. If gender complementarity is in a shambles right now, there it lay. The case for gender complementary marriage will not be made via sociology or historical narrative, harm-benefit analysis or nostalgia.
It does not, however, need to be.
The United States government is not, and never has been, predicated on a mere harm-benefit analysis. That government would look very different. Conservatives can take heart in the fact that the Constitution lacks modernity's preoccupation with (and pseudo-sociology's belief in) a capriciously shifting human nature. That is to its credit. In fact, without a stable human nature, there is nothing inherent to individuals such that rights need always be respected.
Conservatives have a basic understanding, though they have not been very good at declaring it, that a fluid notion of human nature is coextensive with a fluid notion of human rights. This is bad. What the government can giveth, the government can taketh away. People with long memories and a historical sense (more, mind you, than an ability to proof-text old documents) are justifiably leery of the expanding sphere of State powers.
Judge Walker knows this, which is why he correctly phrases the terms of his decision as whether homosexual couples are seeking a "new right" or a right which has always existed but never manifested.
Developments in constitutional law have not aimed to reverse any tenet of the Constitution but to elucidate its implications for new scenarios. Judges understand that the trajectory of a Constitutional mandate may, if applied consistently, have surprising results.
Nevertheless, for Walker's decision to hold, it needs to be shown that same-sex marriage is not a new right; only an (inalienable human) right of which we are newly conscious. A careful and considered response to his statement is overdue, but it will not happen here, save for one note.
Recent history has, it is true, witnessed the rapid encroachment of Enlightenment and sexual revolutionary ideals--individualism, self-determination, identical public treatment--into marriage. However, that same history has revealed ever increasingly that sexual complementarity is a constitutive and vital component to human beings, including homosexuals. Elevating same sex unions to the level of marriage enshrines in public law a statement which is untrue: that sexual complementarity is of no consequence to human individuals or to society.
In order for a human right to be a human right, it needs to be bound in some respects by the human (in all of its biological irrationality)--and not an Sartrean narrative about what the human ought to be (a rational, disembodied, perfectly autonomous, self-creating en soi).
To an extent, the conservative inability to effectively vocalize the precise benefits of complementary marriage is to its credit rather than the reverse. It uncovers the preposterous nature of the challenge that is put to them: "What concrete advantages do heterosexual unions have over homosexual ones?" "Why should trees be made of wood and not something else?" "Why is a blue sky better than a green one?" Who could blame them for being a little inarticulate?
Forcibly submerging the sex-complementary quality of matrimony does not contradict a "tradition;" it contradicts us, collectively and individually. On the natural plane, heterosexual intercourse is the origin of individual life, and so (though it may raise eyebrows to say it), sex is the closest thing to God civilization encounters on this earth.
Moreover, it will continue to be so, regardless of public policy. Denying gender complementarity its unique role in the public is a bit like denying photosynthesis its unique role in agriculture. A State-sponsored fiction. Yet when the State begins to rule by fictions, where does this leave citizens who are in tune with reality?