The Liberal State at a Crossroads
One of the saddest aspects of the current impasse over the gay marriage question—and one of the clearest indicators that something is wrong with the social discourse surrounding the issue—is that both sides have ended up advocating positions which are seemingly destructive of the very interests that those groups are attempting to advance.
By arguing for same-sex marriage as a means of advancing the social prestige of the gay community and of conferring moral approval on homosexual relationships, advocates of gay marriage are eroding the distinction between public and private goods which is not only a key element of the liberal state, but is also the very principle upon which almost every advance in gay rights has been founded for the last half-century. Even Andrew Sullivan, who was a proponent of gay marriage long before many of its current supporters, has lamented the fact that liberals have responded to critiques of their arguments by “adopting a traditionally conservative position: they argue that their primary concern is not to preserve liberty, but to create a society which holds certain values dear, to transform the culture to make it more open and inclusive, and to use the laws to educate people in this fashion.” Sullivan has warned that liberals are undermining their own tradition by making arguments about the “symbolic” nature of gay rights initiatives, yet no-one is listening.13
Similarly, in their defense of traditional marriage, the opponents of gay marriage seem to have undermined the very concept of marriage as a shared social institution by their promotion of the (now largely toothless) Defense of Marriage Act which, for the first time, allows one state to refuse to recognize as a marriage what has been registered as such in another state. Jonathan Rauch points out that, whether or not traditionalists like it, “the trend toward social recognition of same-sex couples” is not going away.14 Rather than protecting the traditional civil institution of marriage, insisting on the maintenance of distinctions which most people regard as unnecessarily discriminatory may bring the entire institution into disrepute, thereby accelerating the social decay which traditional values campaigners rightly lament. John Courtney Murray’s wry observation that “the zealot at times fails to see how his zeal for results may betray him into the use of methods that will in turn betray his cause,” is certainly worth remembering.15
Some have suggested that it may simply be impossible to structure the gay marriage debate in any other way. Perhaps the procedural neutrality characteristic of liberalism really cannot help us after all. Carlos Ball, himself a well-known supporter of same-sex marriage, argues along these lines:
The problem with relying on state neutrality on behalf of the legal recognition of same-sex relationships, from my perspective, is that there is an antecedent question that must be asked in equality cases, namely, is the class making the equality claim similarly situated to the class that already enjoys the benefit? It is difficult, it seems to me, to address this antecedent question in the context ofthe recognition ofsame-sex relationships without a discussion of whether those relationships are in fact as good as opposite- sex relationships ... The state, in deciding whether the principle of equality applies to the recognition of same-sex relationships, has to take a position, for better or for worse, on the moral issues raised by the antecedent question.16
Ball concedes that there is a difficulty when we come to speak about how the state knows that the moral choice it makes is the correct one, but his point is that “in making a choice, the state cannot remain morally neutral.”17 Even the maintenance of the status quo enforces the moral position that lies behind that status quo. The state simply must make a moral choice, even at the risk of making an incorrect one.
The reason why issues like the gay marriage debate are, therefore, so controversial, is because they strike at the heart of the liberal distinction between moral and civil law. If, as Ball suggests, we cannot even speak intelligibly about gay marriage until we have our moral bearings set when speaking about gay relationships, what hope is there for the liberal state?
Murray’s approach may well offer us one last chance. Reconceptualization of the gay marriage discussion in the terms suggested to us by Murray—with respect for his distinctions between society and state, moral and civil law, and common good and public order—would at the very least help both sides to move beyond self-defeating and polemical positions and learn to speak in a common language, rather than shouting at each other in mutually incomprehensible terms. For many contemporary Americans, accustomed to a public discourse in which competing interest groups forcefully attempt to assert their moral vision without compromise, Murray’s ability to distinguish between laws intended to govern the whole of society (including those with whom he may have had profound moral disagreements), and his own beliefs about matters such as religious pluralism and contraception, may seem odd. But it would be a mistake to paint Murray as an extreme pragmatist who was willing to shelve his Catholic convictions simply to make the presence of Catholics in American public life more palatable in the increasingly progressive 1960s. Rather, it was precisely because of his belief in the moral reasonableness of all people that Murray sought to develop means for discussing controversial moral issues in the public square which would allow different groups to engage with and learn from one another. He did not shelve ethical concerns for pragmatic reasons. Rather, he believed that, in a democratic society, the manner in which we conduct our public argumentation is itself an ethical concern of the highest order.18 A Murray-inspired approach to debating gay marriage would not, therefore, require moral neutrality from either its advocates or its opponents (nor, for that matter, from the state). What it would require (perhaps fittingly from a social philosopher who was ultimately a Catholic theologian) is an act of faith—an act of faith by those on all sides of the debate in the moral reasonableness of others, and a willingness to enter into dialogue with them on that basis.