If I read him right, Robert Stacy McCain’s argument for state-enforced marriage inequality (“a hill to die on”!) is that there is a DEEP TRUTH about inequalities between men and women that must continue to be observed:
Feminist ideologues insist that men and women are not merely equal in the Lockean sense — having the right to life, liberty and property — but are radically equal in the sense of being inherently identical.
The differences between men and women, according to the egalitarian view, are so trivial that the law must forbid any recognition of such differences, so that the sexes are treated as interchangeable. As I argued in January, it is from a careless acquiescence to this egalitarian falsehood that Americans have been steadily — one might well say “progressively” — marched to the point where the Iowa Supreme Court mandates gay marriage and anyone who questions that ruling is dismissed as an ignorant, hateful bigot suffering from the mental disorder of “homophobia.”
What did McCain argue in January?
Are men and women equal in the fullest sense of the word? If so, then equality implies fungibility — the two things are interchangeable and one may be substituted for the other in any circumstance whatsoever. (La mort à la différence!) Therefore, it is of no consequence whether I marry a woman or a man.
This is why so many of those who would defend traditional marriage find themselves unable to form a coherent argument, because traditional marriage is based on the assumption that men and women are fundamentally different, and hence, unequal. Traditional marriage assumes a complementarity of the sexes that becomes absurd if you deny that “man” and “woman” define intrinsic traits, functions, roles.
To declare men and women unequal, however, puts one outside the law — you are guilty of illegal discrimination if you say that there is any meaningful difference between men and women. Yet if you refuse to argue against sexual equality, you cannot argue effectively against gay marriage, and find yourself subjected to lectures about “accessing the positive social norms” with nothing important to say in reply.
I suppose one could say this is refreshingly frank. But let’s think about the argument (setting aside McCain’s risible claims to membership in some legally and socially persecuted class of put-upon sexist homophobes).
Like many conservatives, McCain makes libertarian noises when it suits him, but when it comes right down to it, he believes the role of the state is to reinforce “traditional” social forms though the law. The “libertarian” conservative rarely wants the state to leave people alone. He wants social change to leave state-enforced legal inequality alone, which is, after all, a proud tradition, sanctified by history. As McCain says, “traditional marriage”—and the state that ensures the exclusivity of its privileges—assumes certain “intrinsic traits, functions, roles” for men and women. He wants the state to police these imagined distinctions. And he very clearly recognizes that there is an alternative “egalitarian” view according to which the there is no relevant difference between men and women—as far as a just scheme of laws is concerned. So he recognizes that there is a stark moral disagreement between egalitarians and anti-egalitarians. McCain clearly has no problem with the state taking sides in this disagreement. He demands that the state take sides with anti-egalitarians. Indeed, he thinks the conservative movement ought to be willing to die fighting to ensure the state keeps taking the side of inequality.
Now, the conservative tends to make two arguments in this kind of dispute. First, that the inequality they wish to preserve in law is an inequality that has been there a long time. Second, that the inequality reflects a DEEP TRUTH about humanity. Generally, these are linked. The inequality in question is embedded in law and tradition because it reflects a DEEP TRUTH. So the fundamental issue is the DEEP TRUTH’s truth. McCain seems to accept that everything turns on this. He seems to know that if he’s wrong about this, he has no case against marriage equality.
The problem for McCain is that you don’t need to be a feminist ideologue to see that the alleged DEEP TRUTH is in fact an especially vulgar instance of the naturalistic fallacy. From the point of view of a decent morality, men and women are equal in all morally relevant respects. Marriage is important to men and women. Family is important to men and women. So a morally decent set of laws ought to maintain the conditions under which men and women are able to express their love and commitment through marriage and realize their desires to raise families. The problem is precisely that the law fails to do this. The reason it fails is that the law (in most states; not here in Iowa!) reflects the still-popular but intellectually bankrupt view that biological regularities establish binding moral guidelines.
Now, no two individuals are identical, and differences in capacities and preferences are relevant to differences in individual reasons and plans. The capacities and preferences of average men and average women mostly overlap, but sometimes they starkly diverge. But the divergence in capacity and preference between an average man and an average women is no more interesting morally than the differences between two individuals of the same sex. If I like brunettes and McCain like blondes, so be it. And if I like women and McCain likes men, so be it. The fact that an individual’s capacities and preferences diverge from the statistical norm for their sex has no interesting moral implications, either.
It is a fact that most men and women find something deeply meaningful in the complementarity of masculinity and femininity. It is a fact that most couples who marry will form families in the usual mammalian way. But recognizing equality under the law with respect to marriage does nothing to change this. It does nothing whatsoever to keep statistically average men and women from doing what they will do anyway. It is also a fact that the law, as it now stands in most states, prevents certain men and women from enjoying the legal privileges of marriage and protection for their less conventional families. To see the move to rectify this injustice as itself some kind of injustice simply because men are convex and women are concave is an embarrassing absurdity, not a hill worth dying on.