SCOTUS: Where Pessimism Could Kill Marriage Equality

In a previous post I discussed the doctrine of pessimism recently extolled by the philosopher Roger Scruton in the New York Times. Scruton claims that we should resist endorsing social change because the hope we hold for positive outcomes of our actions can be deceiving. We should be very, very careful; something that seems like a good idea today — he takes the example of granting marriage equality — may turn out to be not so good after more experience and reflection.

During oral arguments about the constitutionality of California’s gay marriage ban, Proposition 8, a number of Supreme Court justices seem to be taken in by this kind of pessimism. In different ways, Justices Kennedy, Alito, and Kagan wondered whether it would be premature to assess the effects of granting marriage equality. In the words of Justice Alito:

Traditional marriage has been around for thousand of years. Same-sex marriage is very new. … So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing.

Justice Scalia would prefer to let the question of marriage equality “percolate”; Justice Sotomayor seemed to suggest that this process should take another fifty years. The agreement among the justices and the philosopher is striking. Is pessimism the weapon of last resort for detractors of marriage equality? Can it help them succeed where other arguments against the constitutionality of same-sex marriage have failed?

That other arguments have failed was clear in the futile quest to come up with a state interest that could justify excluding gay and lesbian couples from civil marriage. Defending Proposition 8, Charles Cooper argued that the state has a rational interest in regulating procreation and is entitled to use marriage to do so.

But were this the case, as Justice Kagan pointed out, we should allow only fertile couples to marry. Evidently, this is not the case. If we really thought that the main purpose of civil marriage was making sure that Americans reproduce responsibly, we might only allow marriages among fertile partners. Or perhaps we would have adopted the original Mormon practice of polygamy, since polygamous marriages can be more fertile than unions of one man and one woman. It turns out the state’s interest isn’t so clearly defined as Cooper wants us to think.

If it is difficult to establish what exactly constitutes the state’s interest, then the pessimist assessment becomes difficult as well. Even if we had fifty more years of data on the effects of same-sex marriage on society, what would count as outcomes that show that marriage equality is harmful? Diminishing numbers of heterosexual marriages? Increased divorce rates? And how would we know that these outcomes will have been caused by granting marriage equality? What do we expect the data to demonstrate after more years of such experimentation with same-sex marriage?

It is not enough to ward against mindless optimism that might tempt us to enact social change because of an unjustified belief in positive outcomes. We also need to avoid mindless pessimism that would lead us to reject social change because of an unjustified fear of negative outcomes. Both obscure more pressing questions: Who is harmed by leaving the status quo intact? What injustice is done?

As Alaskan Judge Peter Michalski stated in 1998, “The relevant question is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right but whether the freedom to choose one’s life partner is so rooted in our tradition.”

In her history of the institution of marriage, Nancy Cott shows clearly that the freedom to commit to one’s romantic partner in solidarity, for better and for worse, is very much tied to the American self-understanding as a nation. Rebelling against the British patriarchal royal regime, the colonists saw their union as best exemplified through marriage — the freely chosen bond that romantic love creates between partners who recognize each other as equals in love and life.

Justice Scallia asked, “When did it become unconstitutional to exclude homosexual couples from marriage?” By Cott’s reading perhaps it has always been a foundational American freedom to marry one’s romantic partner — and it has taken us this long to notice that the Fourteenth Amendment thus covers the rights of same-sex couples to exercise this freedom.

The harm done by denying marriage equality consists in denying gay and lesbian couples the full and equal exercise of this right. Pessimism about marriage equality is being used as an excuse not to grant U.S. citizens a right to which they should be entitled. Proposition 8 harms these couples by relegating them to the special legal institution of domestic partnerships, a legal instrument limited to one state. These partnerships are not portable across state lines or international borders in the same way that heterosexual marriages are. The fact that gay couples have to use a special legal drinking fountain not shared by all undermines their standing as citizens and thus inhibits their free exercise of a fundamental American freedom: to bind ourselves to each other in marriage.