Getting Past the Circular Fiat
Accusations of bigotry notwithstanding, I’ve long maintained that what drew me into the same-sex marriage debate about a decade ago was the intriguing and telling argument driving the innovation. The point is perhaps best summed in a passage from Andrew Sullivan’s Virtually Normal, which I quoted in a post some years ago:
Some might argue that marriage is by definition between a man and a woman; and it is difficult to argue with a definition. But if marriage is articulated beyond this circular fiat, then the argument for its exclusivity to one man and one woman disappears.
My proximate concern was that this reasoning justifies any change to marriage, and its method any change to anything. If we put aside, for example, that marriage is by definition a relationship between two people, well, the argument for polygamy is perfectly coherent and logical. Obviously, if we define marriage beyond its definition, then its definition is something else. That there are reasons for the mere definition is a fact that we neatly put aside.
That dynamic has occurred to me as we’ve had internal debate about the Tenth Amendment reasoning in District Court Judge Joseph Tauro’s rulings on the topic of same-sex marriage (here, here, here, and here). From my perspective, Tauro’s reasoning proceeds as if from the “what if” of whether the federal government has a right to tie strings to its spending. The argument may be perfectly coherent and logical from that point on, but I haven’t yet heard a satisfactory argument about why that’s an appropriate starting point.
It’s certainly an attractive way to begin an argument for some fundamental change in previously held beliefs — putting, as it does, defenders in the position of decoding all of the internal justifications that cultural evolution has built into the definition and belief. But it’s surely inadequate. Back when I was arguing against Sullivan and his allies, in the earlier days of the public debate, nobody considered this route to finding the Defense of Marriage Act unconstitutional. The two paths to that result were thought to be the Full Faith and Credit clause of the Constitution or the Equal Protection provisions of the Fourteenth Amendment.
One can argue that Massachusetts Attorney General Martha Coakley divined an argument that we all had overlooked, but it seems to me at least probable that the reason we overlooked it was that it conflicted with our beliefs about the government’s right to set policy around its own programs. Perhaps we were wrong, but a bit more explanation related to that error should be required.
Be that as it may, we’re well into the realm of folks who prioritize cranial activity, and that’s simply not how most people come to their conclusions. For most, the answer to the question of “what if there’s no difference between opposite-sex couples and same-sex couples” is something like: “Then I can stop being called a bigot by emotional people and feel as if I’m on the ‘right side of history.'” Well, as understandable as that response may be, it’s not a formula for the preservation of principles that have worked for our society or for progress as we seek to move forward.
The same is true of Tauro’s rulings, which add a legal, wonkish layer of recircled fiat on top of the cultural one that men and women are interchangeable within sexual relationships.