1. Judge Walker’s decision, he tells us, is based on the principle that the state ought not to “enforce ‘profound and deep convictions accepted as ethical and moral principles’” or to “mandate [its] own moral code.” But that is, of course, precisely what Walker himself has done. His position rests on the question-begging assumption that “same-sex marriages” are no less true marriages than heterosexual ones are, and that the only remaining question is whether to allow them legally. But of course, whether “same-sex marriages” really can even in principle be “marriages” in the first place is part of what is at issue in the dispute. The traditional, natural law view is that marriage is heterosexual of metaphysical necessity. Rather than staying neutral between competing moral views, then, Walker has simply declared that the state should stop imposing one moral view – the one he doesn’t like – and should instead impose another, rival moral view – the one he does like.
What we’re seeing here is just one more application of the fraudulent principle of “liberal neutrality,” by which the conceit that liberal policy is neutral between the moral and metaphysical views competing within a pluralistic society provides a smokescreen for the imposition of a substantive liberal moral worldview, on all citizens, by force. (Of course, liberals typically qualify their position by saying that their conception of justice only claims to be neutral between “reasonable” competing moral and metaphysical views, but “reasonable” always ends up meaning something like “willing to submit to a liberal conception of justice.”)
That “liberal neutrality” is a fraud is blindingly obvious to everyone except (some) liberals themselves. (I say “some” because it is very hard to believe that many liberals are not perfectly well aware that the “neutrality” of their position is phony, but maintain the pretense of neutrality for cynical political reasons.) In any event, I have argued for its fraudulence in a number of places, most fully in my paper “Self-Ownership, Libertarianism, and Impartiality” (the arguments of which are aimed immediately at some libertarians’ application of the “neutrality” idea, but apply to liberalism generally).
All of this would be bad enough if the policy in question were a result of a popular vote, but Walker has essentially imposed his will on the people of California by sheer judicial fiat. Pope Benedict XVI has famously spoken of a “dictatorship of relativism.” But I think that that is not quite right. Most liberals are not the least bit relativistic about their own convictions. A more accurate epithet would have been “dictatorship of liberalism,” and in Judge Walker that dictatorship has taken on concrete form.
2. As with other issues, what will decide the “same-sex marriage” controversy in the long run are the attitudes that prevail in society at large, not this or that judicial decision, ballot measure, or piece of legislation. If a solid majority of citizens continue to oppose “same-sex marriage,” then it can be stopped and liberal advances can be turned back. If not, then conservative efforts will inevitably fail in the long run. So, if they are to have a chance of succeeding, conservatives must work to shore up popular opposition to the idea of “same-sex marriage.”
Social-scientific and pragmatic arguments have much intellectual value and some practical value in this connection. But where moral and social questions are concerned such arguments are never going to carry the day in a society whose moral and social trajectory is as firmly liberal as ours is. The advocates of “same-sex marriage” are motivated by a moralistic fervor, and their position rests (whether all of them realize this or not) on controversial metaphysical assumptions about human nature and the nature of value. If they are effectively to be rebutted, they must be met with equal and opposite moral and metaphysical force.
Unfortunately, too few conservatives are very effective in this regard. With some of them, this is because they more or less share the moral and metaphysical premises in question; their “conservatism” amounts to little more than a milder form of liberalism. With others, it is because an obsession with short-term electoral strategy and the nuts and bolts of policy has made them lose sight of the deeper questions of principle that were the focus of earlier generations of conservatives, and which ultimately give point to political strategizing and policy design. This is a general problem with contemporary conservatism that I have explored in detail in my essay “The Metaphysics of Conservatism.”
3. What this entails in the case at hand is that in order to challenge the legitimacy of “same-sex marriage,” conservatives have to be willing to challenge the moral legitimacy of homosexual behavior itself. To concede even for the sake of argument that such behavior is morally unobjectionable is effectively to concede the whole issue. Conservative moralists have always upheld the norm that sexual behavior and marriage ought to go together – both because sex naturally results in children and children need the stability of marriage, and because sexual passions are inherently unruly and need to be channeled in the socially constructive way marriage provides. To allow that sexual behavior need not be heterosexual is implicitly to allow that marriage too need not be heterosexual. Pragmatic social-scientific arguments about the possible negative long-range social effects of allowing “same-sex marriage” can only seem anticlimactic in the face of such a concession – heartless nitpicking at best, and the rationalization of prejudice at worst.
Moreover, challenging the moral legitimacy of homosexual behavior requires a moral theory grounded in a classical essentialist metaphysics, one in which what is good for us is determined by a fixed human nature or essence and in particular by the natural ends of our various faculties. As my regular readers know, the specific version of classical essentialism I favor is the one associated with the Aristotelian-Thomistic tradition, but one needn’t share that specific view for the purpose at hand; a broadly Platonic metaphysics would do, as would a non-Thomistic brand of Aristotelianism. (Divine command theory is, I think, not a plausible alternative, because it either takes God’s commands, and thus morality, to be arbitrary – not a plausible approach to ethics, in my view – or it holds that what God commands us to do is what it is good for us to do given our nature – in which case it isn’t really an alternative to a classical essentialist approach, but rather a supplement to it. See chapter 5 of my Aquinas for more on this issue.)
I hasten to add that this is nothing peculiar to traditional sexual morality, though. No morality whatsoever is defensible apart from a classical essentialist metaphysics. If there are no ends set for us by our nature, then there can in principle be no objective, non-arbitrary way of determining what it is good for us to do, and thus what we ought to do. Hence in the final analysis, and in the main if not in all details, traditional sexual morality and morality full stop stand or fall together. Though liberal advocates of “same-sex marriage” are fervently moralistic, they have no rational basis whatsoever for their moralism. Their position rests ultimately either on an appeal to something like Rawlsian “considered intuitions about justice” – academese for “groundless and parochial liberal prejudices my friends and I all have in common” – or on a neo-Hobbesian contractarianism, which is not really a moral position at all, but a non-aggression pact between the members of whichever group of “rationally self-interested individuals” can collectively convince the mob (or at least the judicial bureaucracy) to implement policies favorable to their interests. (See The Last Superstition for the full story on this, and on the justification of traditional sexual morality.)
For reasons already stated, though, too few conservatives with influence in politics or journalism are willing or able to make the moral or metaphysical case required. They are either too beholden themselves to the moral and metaphysical assumptions of liberalism, or too narrowly focused on questions of immediate political feasibility. Deference to the attitudes of their “socially liberal” “conservative” colleagues, of potential voters, and of their liberal fellow journalists, intellectuals, and politicians prevents even those conservatives who truly believe that “same-sex marriage” is wrong because homosexual behavior itself is wrong from ever voicing this opinion. Hence their emphasis on exclusively pragmatic social-scientific arguments, on respect for the will of the voters, etc. – arguments which cannot succeed in the long run.
4. There may be limits in practice, but there are no limits in principle, to what liberals might come to endorse, and be willing to impose on all by judicial fiat, in the name of “justice.” No doubt most liberals do not at present advocate infanticide, mandatory euthanasia, “group marriage,” incest, bestiality, mandatory vegetarianism, mandatory organ harvesting, and the like, but there is nothing whatsoever in the “logic” of liberal arguments for abortion, “same-sex marriage,” euthanasia, “animal rights” etc. to rule such things out. Indeed, there is nothing to rule out even more bizarre and as yet unimagined practices than these. The only barriers in practice are the “intuitions” liberals currently happen to have, but those intuitions are always subject to revision, and the trajectory of the revisions is invariably in a “liberationist” direction. If something seems beyond the pale now, just wait a decade or three.
The reason, again, is that if man has no essence and no natural end – that is to say, if we reject classical essentialist metaphysics and the natural law system of morality that derives from it, as the founders of liberal modernity did – then there can be no objective, non-arbitrary way of determining what is good for us. And the flip side of this is that there is no existing moral conviction, no matter how widespread, ancient, and venerable, that might not be dismissed as an arbitrary prejudice, something to be freed from rather than deferred to and shored up.
This is not a slippery slope argument. The point is not that liberalism will lead someday to something truly nasty. It has already done so many times over; indeed, it is itself truly nasty. As Alasdair MacIntyre put it in After Virtue, our choice is between Aristotle and Nietzsche, between submitting ourselves to the natural order or instead to the will to power of self-appointed “revaluators of all values.” In the person of Judge Walker, Nietzsche has spoken.