When I began thinking about how the fight over legalizing gay marriage would affect the fight over legalizing polygamy, I had a persistent sense that opposing gay marriage on logical grounds had been the wrong tactic for those who did not want to see it legalized. I eventually sort of, kind of short-handed that sense as the idea that institutions like marriage evolve organically, which is, of course, the argument Megan McArdle is making in her discussion of the unknowability of the possible repercussions of gay marriage. (You know, the really, really, really long post of hers I keep citing over and over.)
However, that didn’t really capture what my uneasiness was about. What I was really wondering was why it is invalid to simply say: I do not want to live in a society where gay marriage is legal. Or for me (since I am not worried about living in a society where gay marriage is legal): I do not want to live in a society where polygamy is legal.
I understand there are problems with this formulation since people can - and have - said: I do not want to live in a society where Blacks and whites live together on equal footing. Or, not so long ago: I do not want to live in a society where women can vote. And yet, still, I think there is validity to the majority of people in a society having a say in legal changes that will - even probably will - change the form of their society. Perhaps that is simply the definition of a conservative: someone who believes the status quo is the best way unless and until it becomes overwhelmingly clear to a majority of society that something has to change.
I was never sure quite how to write about this but I have now (via NRO Web Briefing) run across an essay at Public Discourse that discusses this in terms of pornography. I’m not sure I agree with the entirety of the article but this paragraph captures much of what I wanted to express but couldn’t quite manage (emphasis mine):
Even in defending what he believes is a moral right to pornography, Ronald Dworkin has identified the public nature of the interests damaged in communities in which pornography becomes freely available and widely circulates. Legal recognition of the right to pornography would, Dworkin concedes, “sharply limit the ability of individuals consciously and reflectively to influence the conditions of their own and their children’s development. It would limit their ability to bring about the cultural structure they think best, a structure in which sexual experience generally has dignity and beauty, without which their own and their families’ sexual experience are likely to have these qualities in less degree.”
The author is, as I said, speaking of pornography and, more generally, of vice; he is also speaking of an area he believes has “profound moral significance”. However, I think the same ideas apply to any major changes to the fabric of society: women voting; equal rights for Blacks; equal rights for women; gay marriage; polygamy; massive immigration; widespread use of languages other than English; legalizing abortion; and, now, re-criminalization of abortion. All of these changes have limited or probably would limit people’s “ability to bring about the cultural structure they think best”.
This does not mean there is never a reason to make such changes. It does mean, at least to me, that “I do not want to live in a society where” should be given weight in arguments over such matters and, so long as a substantial majority is making that statement, it should not be overridden lightly.
Now that I’ve written that down, it appears so obvious as to be trivial. Surely that’s what democracy is about: a majority deciding what their society should look like. And yet it seems to me that we have largely lost that conception of democracy when it comes to cultural issues. We have so totally accepted the idea that all such issues are analogous to what the article’s author describes as:
pitting the “rights of individuals,” on the one side, against some amorphous “majority’s dislike of smut,”on the other
that we ignore the underpinnings of that dislike: “[t]he public interest in a cultural structure”. Rather than accept that such an interest exists and is both “concrete” and valid, we now require that such an interest be justified - and we always begin with the idea that it is virtually impossible to do so against any invocation of the rights of individuals.
I believe I understand why that is the case: there were cases - like racial equality and women voting - where the public interest was on the wrong side morally. I imagine there are and will be other such cases. But our reaction to those cases has been to throw out the very idea that there is a “public interest in a cultural structure”. That has helped individuals who want legal sanction to do things most of us would rather they didn’t but it’s not clear it’s helped society as a whole. And without a healthy society, individuals - whatever their private predilections - don’t stand much of a chance.