Yesterday I stood with 1,000s of other fellow Wisconsinites in the annual LifeChain, where we stood along major roads in the greater Milwaukee area holding signs protesting abortion. The signs read “Abortion Kills Children,” or “Adoption: the Loving Option,” or “Abortion hurts Women.” During the hour and a half that we stood along the roadside I reflected on ‘moral consensus’ and the realities of a land that lives post Roe vs. Wade.

We live in a land that constitutionally (and if you have followed the debate and comments on Karen’s recent post) and morally believes in ‘life, liberty, and the pursuit of happiness,’ it is ironic that we also live in a land that denies life to unborn children. There seems to be quite the similarity between saying that babies in the womb are really fetuses and slaves aren’t human (well, maybe 3/5th human). We change the definition of who the constitution protects so as to create a moral loophole. Unborn babies are not babies, therefore not protected by the constitution, our declaration of civil moral consensus. It took constitutional amendments to make slaves human, and that seems to be the only way to get abortion ended in this country.

The other thought I had as I stood silently protesting was the similarity between standing on the side of the road and voting against gay marriage. I’m not suggesting that gay marriage and abortion are similar, the murder of unborn children is completely different than one’s sexual preference. But I thought about the effectiveness of holding a sign on the side of the road. In many ways, it is about as effective as trying to vote against gay marriage. Is it successful in accomplishing it’s goals? Slightly, but there are better methods. Yet, I still stood there because it is effective, if only slightly. A slight effectiveness does not mean that I should not do it. A slight effectiveness of voting in the issue of gay marriage does not keep me from voting. But I have to confess that the annual LifeChain is about the only time I get involved in the pro-life movement. Just like casting my vote is about the only time I take a stand against gay marriage. I’ve become content to be involved in only ‘slightly’ effective means of social change. Slavery did not change because once a year people stood on the side of the road and protested. Maybe they did that, but social change took place through social debate and discussion and action.

The abortion debate also has a bearing on the debate of law and morality. The majority in this country seem to support abortion, but does that make it right and ‘moral?’ Does government have a responsibility to ignore the masses and do what is ‘moral?’ When it comes to gay marriage, I confess that I often think ‘no,’ but when it comes to abortion, I resound with a definite ‘yes,’ which really serves to muddy the waters even more. Where is that line between government being reflective of the masses and doing what is moral?

In this instance, the out is provided by the constitution. My pursuit of happiness is limited by another’s liberty. Currently, a woman’s happiness trumps a baby’s life and liberty. “It’s my body” sounds similar to “that slave is my property,” both of which are constitutionally wrong. A gay man’s happiness in marrying his lover is fine constitutionally unless tax rates have to be raised on everyone because he now gets a tax break for his sexual preference of marrying a man. Now his happiness is encroaching on my liberty. I could even make the same case against abortion. Killing off part of the next generation of workers and tax payers makes my taxes go up, again affecting my liberty.

All of which, I believe, shows that we have a good standard of moral consensus in the constitution. With that as our guide, it seems that moral consensus on many of these issues could be handled. So, I throw this question out to my fellow bloggers…how does the constitution apply to gay marriage?

In this delightful sketch from A Bit of Fry & Laurie, Stephen Fry asks whether the qualities of the English language are a function of the characteristics of the English people, or whether those qualities “come extrinsically, extrinsically, from the language itself? It’s a chicken and egg problem.” So today, we’re talking about the chicken-and-egg problem of law and moral consensus.

Greg writes that “Law can’t be legitimate if it’s not grounded in a moral consensus. All law presupposes a moral framework. You can’t ban public nudity without some implied judgment on the moral status of public nudity.” It seems to me that there are (at least) two disparate claims set forth here: a) that law must be grounded in moral consensus, and b) more subtly, that law implies moral judgment.

But the two don’t entail each other necessarily. The legislature can issue laws that reflect society’s moral consensus without passing judgment on whether that consensus is good, i.e., without making a moral judgment. (Of course, we are then presupposing a moral judgment on whether that particular mode of issuing laws is a good one, but I don’t think that’s what Greg is talking about.) On the flip side, the legislature (or monarch, or tyrant, whatever) can issue laws that do imply a moral judgment – i.e., banning public nudity because public nudity is morally bad – but that don’t reflect anyone’s consensus.

But here comes the chicken-and-egg issue, because the law often serves an educative function as well as its commanding one, i.e., people tend to view as wrong something that the law tells them to perceive as wrong. So moral consensus can follow the law as well as it can precede it.

Still, I think that we’re encountering some confusion in the marriage debates in part because we’ve been operating with two different understandings of how law is made in democracy, but without addressing the difference between them. Law can be made to reflect societal consensus without taking a stand on the metaphysical status of the act forbidden or commanded, or it can be made as a mandate to do that which is good or avoid what is bad as determined by moral judgment. And the difference between these two modes of making law doesn’t become clear in cases of societal moral consensus, such as public nudity. In other words, when there is moral consensus, we don’t really know whether the law exists simply because of the legislator’s moral judgment or because the legislator is reflecting a broad societal moral consensus in issuing laws against public nudity.

Rather, we see the difference between these two ways of making law in cases of dissensus, such as we’re finding today with the definition of marriage. Has the state always favored traditional marriage because of societal moral consensus, or because the state/legislator has reflected a (good, in my opinion) moral judgment that traditional family structure is morally good? The answer could be “both,” in the sense described above, since societal consensus might have come in part from the practice of traditional marriage ensconced in the law. Which might be leading to some of the current confusion: “The state can’t legislate morality!” versus “The state has always legislated morality; why should it stop now?” But if the answer is only ‘societal consensus,’ we’re stuck when societal consensus shifts.

Where does this leave us? Minimally, I think it means that we need to figure out what type of government we really have, and I think conservatives have been ambiguous on this in the past. At times we want “pure democracy” in the sense of simple majoritarian rule, which maps onto the idea of reflecting societal moral consensus: i.e., “legislate what we tell you to legislate and stay out of morality. Traditional marriage is good because it’s what the people want.” At other times we want democracy with a moral standard – something that comes “extrinsically, extrinsically” from society itself. In other words, we want Congress to legislate that which is independently good, meaning either good for society or good by a moral standard higher than humans.

But if all democracy is is a reflection or function of society’s moral consensus, there might not be much left for traditional marriage.

At the risk of dwelling on a topic that it may not be edifying to dwell upon, I’m going to circle back to public nudity. (Hang Together has existed for just one month and we’re already establishing a clear brand identity!)

Replying to my argument that the moral imperatives of reproduction alone are insufficient for a shared public morality, Dan wrote that he agreed, but thought that the state specifically should only have a role where reproduction is involved. I asked whether Dan’s position didn’t imply “whole hog libertarianism on everything sexual other than actual intercourse.” After all, as long as intercourse isn’t involved, it would seem reproduction isn’t an issue and thus (by Dan’s theory) the state seemed to be excluded.

So what about banning public nudity? After some back and forth, Dan said:

The state’s interest in the presentation of sexuality in the commons is not an interest in sexuality per se, but in refereeing the interests of two competing actors who have a claim on the commons.

But how is the state to referee these conflicts if it doesn’t know anything about the subject? Suppose actor A does action X in the commons, and actor B goes to the state and makes a claim that X excludes his use of the commons, not because X does direct harm to B but because X degrades the commons in such a way that it makes our moral formation as human beings impossible, such that (as Dan himself admits) the state can exclude it. How is the state to evaluate the claim unless the state understands the moral significance of action X and its impact on the moral formation of human beings?

Law can’t be legitimate if it’s not grounded in a moral consensus. All law presupposes a mroal framework. You can’t ban public nudity without some implied judgment on the moral status of public nudity.

This judgment need not be a total judgment. The state need not decide whether sexuality is an expression of God’s loving nature and marriage is an image of Christ and the church. But it does need to know that flapping your bits around in the town square is wrong.

When the state favors the parents over the pornographers, it is not doing so because it has made an independent moral determination that the pornographer is purveying a harmful metaphysical something.  It is responding to the community’s demand that the commons’ floor be set at a certain level.

I agree the state should not make an “independent” determination, but ground its own moral knowledge in the public moral consensus. My point is that the state does need to exercise some kind of moral competence or it can’t do the job you’re asking it to do.

The state must take this role because the pornographers and the parents have mutually exclusive claims to use of the commons.  And the state can, and does, draw the line without reference to an absolute moral standard.  It simply references community standards.

Not sure what you mean by “absolute” here. But your statement does seem to imply that a moral standard (ultimately, the public’s rather than the state’s) is being codified in law. This implies a need for some level of competence in moral judgment by the state – so it can know and execute the public moral conesnsus.

That’s about all it can legitimately do.  Doing more would involve the state in determining what is orthodox.  And that it may not do.

I agree the state should not enforce a doctrinal orthodoxy. But the state simply cannot be neutral about whether it is morally OK to flap your bits around in the town square. That option just doesn’t exist.

That is why culture is so important.  On these types of questions, when both sides cannot simultaneously do as they wish, culture is the deciding factor.  The state, although a cultural actor, simply enforces the decision made by all the other cultural actors.

But how does it enforce a view unless it has some competence to understand that view and pass judgment on what particular actions do and do not conform to it?

Bottom line: The state ought not enforce a total view of the meaning of life, but it cannot by any possible means avoid enforcing at least a partial view of the meaning of life. The choice to ban public nudity presupposes a moral view (ultimately, the public’s moral view) and thus requires the state to know and judge morality to some extent.

I have to chuckle whenever I here about new government programs because those in government often only see the short term effect of what they are doing. For instance, “cash for clunkers,” while supposedly great for the environment, was not great for the used car industry! The current debate between Greg and Dan is a similar example in that they  seem to be arguing over whether or not the destruction of marriage was intentional or not. While Greg and Dan continue to debate over whether or not Dan is a functionalist, I would argue that the death of marriage was not an intended result of the last forty or so years of government policies on marriage but it was the result.

Functionalism would  render what the government thought it was doing as irrelevant, but it is relevant. I’m not entirely sure that the government intended to kill marriage with lose policies anymore than they intended to reward marriage financially. What may have been well intentioned had unintended results. I have the same compassion for our government thinking it was helping that I do for natives who think dancing brings rain. What we need to be careful of is not becoming natives ourselves and assuming that government can bring marriage back. In the given climate, we might have a better chance dancing for rain.

And yet, given all that we have discussed on this blog, that does not mean that we can simply sit back and do nothing. Government policies should not be our only strategy for restoring marriage to its correct place. However, we cannot ignore government policies either. Government interaction should be part of our efforts, but we need to have reasonable expectations. It needs to be a piece, not the whole. As Greg said earlier, government is not culture, but it is a part of culture. Thus, it must be part of what we do.

Marriage may be dead, or at least in its death throes, but as Maggie Gallagher of the National Review has reminded us, we can’t stop trying to revive traditional marriage. We just need to remember that government policies are just part of a successful method of cultural change.

I want to isolate one issue in Dan’s most recent post on whether there’s hope for marriage. The larger issues are important and we’ll get to them in due course. But I think Dan has made a pretty key mistake that needs to be addressed before we carry the broader conversation further.

In social science, the mistake that I have in mind is known as “functionalism.” This is a method for explaining human behavior that was fashionable for a short period but is now generally recognized as a fallacy.

Functionalism assumes that the true meaning of human behavior is unrelated to the subjective experience of the one engaging in the behavior. My thoughts, my feelings, my understanding of what I’m doing, my motivation for doing it – all are treated as irrelevant to the question of what my behavior is really all about. Only the actual impact of my behavior is relevant.

So, for example, when explaining the significance of a social ritual (say, a rain dance) the functionalist disregards what the people carrying out the ritual believe they are doing (summoning the gods to make it rain) and looks only at the practical impact (reinforcement of the tribe’s social solidarity, transfer of wealth to the rainmaker). The reductio ad absurdum of functionalism can be seen in the old joke about the Martian who observes our world and concludes that dogs rule the Earth and humans are their slaves, because we follow them around all day picking up their poop.

Functionalism fails because it cannot account for the behavior it describes. The tribe would not do the rain dance if they didn’t believe it made rain.

Functionalism is particularly destructive to practical application. If all you want to do is describe the tribe, you can get away with a functionalist account, although it will be inferior to an alternative account that includes the subjective. But if you want to influence the behavior of the tribe, you had better know not just what the rain dance does but why they do it.

Speaking of America’s elite cultural institutions, Dan writes:

They do not see the well-being of women, children, the poor, and minorities as ends in themselves.  In fact, most often they seem to be little more than sacramental obeisances…

Let’s try out a sample conflict:  Radical Islam.  Everyone, and I mean everyone, knows that the radical thread of Islam oppresses women in unspeakable ways.  That includes these institutions.  But instead of chasing this misogynist theology to ground, they have been in full-throated defense ever since 2001.  Why?  Because finding fault with America rates so much higher on their priority list…

The poor?  Compare and contrast the wealth-creating track record of socialism and capitalism, then compare America’s poor to those of the rest of the world.  Which system do these institutions champion?  The one trapping more people in poverty, of course.  Children?  We all know that abortion kills them; even those conducting the procedures and their defenders know.  But, to these institutions, sexual libertinism is more important than a child’s life.  Or even millions of them.

I’ll leave aside the implied libel against the sacraments in the phrase “sacramental obeisances” and stick to the political questions.

I agree that our institutions are promoting policies and priorities destructive to the ends they purport to uphold. Does Dan think they do so intentionally? That seems to be the implication of both his word choices and his substantive position. But is this plausible?

Or is the real problem that our side is so sociologically incompetent that we are unable to effectively demonstrate the failure of the policies and hold our institutions accountable for results?

A final note. There’s a fascinating new group blog out there that Dan should really check out. Here’s a quote from its vision statement:

We have seen some of our fellow conservatives identify the success of conservatism with the success of America, such that progressives are viewed as alien to the polity rather than fellow Americans with whom we disagree; we will not go that way.

Words worth contemplating.