Saturday, January 01, 2005

REFERENCE -- Interview with Dale Carpenter on Same-Sex Marriage

Posted by Craig Westover | 12:00 AM |  

CW: Before we get into the specifics of same-sex marriage, I’d like to set a broader context by getting your take on the notion of “judicial activism” in general. Judges are all the time asked to interpret laws written by legislatures. A lot of times these laws are pretty vague -- sometimes unintentionally, sometimes intentionally. Sometimes the law seems clear, yet a judge or court seems to pull a decision out of the air.

When does a judge step over the line -- or does a judge ever step over the line -- between interpretation and what is called “judicial activism?”

Carpenter: That’s a very large and complex topic. On judicial activism in general, a popular way of directing this to say that people think of “judicial activism” as any decision they don’t like. That’s true of both conservatives and liberals. There have been many decisions in the last decade or two that many people consider conservative judicial activism, and then there have been some decisions in the past four decades or so that many people regard as liberal judicial activism.

CW: What is an example of conservative judicial activism?

Carpenter: Oh gosh. For example, Bush versus Gore when the court called an end to the counting of the votes in Florida despite the fact that there was an ongoing political process and despite the fact that it was a state-based process, which conservatives usually respect. The court ordered an end to the counting. Many people, rightly, regard that as being a very aggressive decision on behalf of an ultimately conservative result.

Another example of conservative judicial activism is in the area of sovereign immunity in which the states are not supposed to be sued. They are immune from lawsuits. The court has adopted a very aggressive version of state sovereign immunity that is not rooted in the text of the constitution, in the intentions of the framers of the 11th Amendment, which is ultimately where this doctrine is suppose to come from and so it is very hard to justify what the court is doing. In fact, the court’s decisions in that area look a whole lot like liberal judicial activism in the 1960s when the court did not root its decisions very closely in the text or history of the constitution, but in the service of certain kinds of rights claims and claims of criminal defendants and so on. There are echos of that kind of judicial activism in these recent decisions.

CW: So back to the original question, when does a judge cross the line between interpretation of the law and the realm of judicial activism?

Carpenter: My approach -- and I do think there are good and bad and better and worse decisions. I don’t think that everything is relative in constitutional law. My approach is to start with the text of the constitutional provision at issue. There are times when the text of the constitutional provision will lead to certain results or foreclose certain results.

A good example of this is the provision that the president of the United States must be 35 [years old]. I don’t think the court is free to apply an interpretation of that provision that says you can be 30 and be president of the United States even if you are mentally capable and mature enough and so on. So we start with the text in my view.

Now the problem with that, of course, is that the text is often very open ended. Then we have to go to another level of interpretation. For me that next level of interpretation is that we should consult the original meaning of the text for those of the period in which the text was adopted.

CW: Looking at original meaning of the text is different than looking at the original intent of the authors, is it not?

Carpenter: It absolutely is different than looking at intent. What counts to me is not the subjective intent of those who drafted the provision at issue. What counts to me is the meaning, the way that that text would have been understood in the culture in which they lived.

CW: That’s the Randy Barnett school of thought.

Carpenter: That’s right. It’s original meaning, not original intent. This is the direction most originalists are going, and I think it’s the right direction.

The problem with that is, once again, while it can help to answer questions, and we can reason from both the text and original meaning, it still leaves many questions open because there are a lot of things that the text and the framers and the people who ratified the text would never have thought of.

It could be in some cases, like the equal protection clause [14th Amendment], the framers had a very broad understanding of equality. Maybe they believed, for example, there should be no irrational discrimination against people, and that courts ought to have a role in enforcing that principle. Now in 1868 when they adopted that provision, no one would have regarded it as irrational to exclude blacks from service on juries, to exclude women from the legal profession, to have racial segregation in all areas of life or, certainly, to criminalize acts of sodomy.

CW: A good example is despite the 14th Amendment, public schools at the time were not desegregated.

Carpenter: That’s exactly right. So if we thought of original meaning or original intent as what did they think about specific issues at the time and how can we reconstruct what they might have thought about them today, we might come to one result -- we would allow states to prohibit women from becoming lawyers, we would allow the states to prohibit blacks from serving on juries, we would allow racial segregation . . .

CW: We would never had had Brown v. Board of Education.

Carpenter: Brown v. Board of Education is illegitimate if that [original intent] is what we are limited to. If, however, we think the text and the larger purposes of the amendment were broader than the specific intentions of the people who drafted and ratified the document, then it seems to me each of these results could be justified in light of lived experience and learning about each of these groups and about what equality means in light of current circumstances.

That is not an unconservative view; that is a conservative view.

My own conservatism is rooted in Edmund Burke. For Edmund Burke, “conservatism” did not mean we never change anything. It meant that we don’t change things rapidly. We change things incrementally. And we don’t change things in light of abstract propositions. We change things in light of our actual lived experience. So it’s about pace and direction.

CW: Okay. So let’s apply that to the gay marriage issue. A common conservative argument is that marriage has a traditional meaning, it has prove effectively beneficial to society, it is the recognized status quo. Writing in National Review. David Frum, in essence, charged that gay marriage is not incremental. He said the intent is not to extend marriage [to another group] but to radically transform it.

Carpenter: I think there are two separate issues here. One of them is as a matter of what the courts should do, should courts be involved in basically forcing gay marriage on an unwilling population. My answer to that is “No.” The second question is a more policy oriented question, in my view which is, “Is gay marriage a radical and therefore a more dangerous change in marriage?” My answer to that is also “No.”

So, I think it is possible to separate out two different issues here. The first is the judicial activism issue, and then there’s the policy issue. One could hold different positions on both those issues.

Once could believe in a very aggressive judicial role and oppose gay marriage. That’s what I believe some conservatives are in the position today of doing. One could believe in very restrained judicial role, and oppose gay marriage, other conservatives take that view.
On the other hand, one could believe in a very aggressive judicial role and support gay marriage -- that’s the progressive liberal view. Or one could have my view, which is a restrained judicial role and support gay marriage; that is, if gay marriage is to be brought to the country, it ought to be rough incrementally and democratically. That’s my view.

CW: So you would say that the Massachusetts court over-stepped its bounds?

Carpenter: I think it was a very unusual and hard to defend interpretation of the rationale basis test, which is usually applied by courts in cases like this. I have a very hard time defending that decision.

CW: Let’s look at gay marriage from a policy perspective. Conservative point out that America is based on Judeo-Christian principles, which they argue make gay relationships wrong. So is a policy statement inherently unconstitutional if it is based on the moral conception that gay relationships are wrong? To broaden that a little bit, is a law based on a religious principle inherently unconstitutional?

Carpenter: No. The law is constantly based on ideas of morality. In fact, one of the reasons I support gay marriage is that I believe it is the proper, moral view. The law ought to help people settle down into stable committed relationships. That is the moral view in my judgment. I also think that it is moral not to discriminate against people because of their sexual orientation. That is a moral principle. So I myself do not reject the principle that law has a basis in morality.

What I think the law ought to do -- this is, what we can’t do is simply justify the law in terms of religious doctrine. In other words, perhaps somewhat motivated by religious faith and precept, we have to be able to explain our policy decisions in secular terms -- in ways that can appeal to a broad base in a democratic society. This is sometimes called an “overlapping consensus.”

You may hold the view that murder is bad because your religious values tell you so. I may hold the value that murder is bad because it causes harm to people, and I have kind of a Kantian view that comes out of philosophy that murder is a bad idea. The fact that you are motivated by your religious principles does not make all laws against murder unconstitutional or unwise. I think we just have to be able to translate these religious principles into the kind of justifications we can talk about broadly as a democratic society.

CW: Looking at “overlapping consensus” -- some surveys show 70 percent of people don’t want gay marriage. How does that factor into your discussion?

Carpenter: I think that’s right -- 70 percent. It may be more in many places. In Mississippi it was 86 percent in a recent referendum.

I think gay marriage advocates have to do a better job of explaining how gay marriage is a deeply conservative cause. It is a deeply conservative idea. And they have to do that by appealing to our fellow citizens and not by running to courts.

There is something about courts that makes people want to throw tea into the Boston Harbor. It really upsets them. On the other hand, when these changes are made democratically as they were in California, when California basically very broadly adopted this domestic partner idea, or in Connecticut when Connecticut adopted civil unions, there’s something about legislatures and democratic actions that make people accept the results even when they are on the losing end. Accept the legitimacy of the results -- they may not agree with the results -- but they accept the legitimacy of the results even when they don’t win. That’s what we have to do.

Now as far as there being a strong consensus against gay marriage, I would point out that the fact that there is a consensus against a view does not make it wrong. As of the late 1950s, 96 percent of Americans still believed interracial marriage was immoral. I think that it takes time.

CW: Does it make any difference to your case if, for lack of a better word, “gayness” is a choice and not a biological imperative?

Carpenter: It doesn’t ultimately make a difference. In other words, I don’t think we have to decide that question in order to decide the issue of gay marriage.

I myself think the evidence overwhelming supports the view that people do not consciously choose to be homosexual or heterosexual. Whatever the cause is -- biological, early upbringing or whatever it is -- they arrive at a point in their lives where their predominant sexual orientation is in a particular direction. They don’t wake up one day and make choices about what that orientation is going to be. It’s like what sort of foods do you prefer to other foods. You don’t really know why -- you don’t make a decision about it -- it’s just what you prefer.

I don’t think we have to resolve that question to resolve this issue of gay marriage. If it’s not a choice, then it seems to me that we have a lot of people out there who are homosexual in their orientation. That means if they are not allowed to marry, we are going to have a huge part of the population that is cut off from the stabilizing influence and incentive marriage offers.

And what would conservative social theory predict would happen to a group of people who are cut off from the stabilizing influence of marriages?

I think it would have a lot to say. All kinds of pathologies -- drug and alcohol abuse, rampant promiscuity, more depression, less productivity, more dependence on the government and so on. Marriage has a very powerful [positive] affect.

If homosexuality is in some way a choice, then it seems to me that we have to ask “Is it a bad choice? Is it a choice that harms people inherently?” I think the answer to that is no.

Certainly one could be a homosexual and be irresponsible, just as one could be heterosexual and be irresponsible. But at that point, it seems to me, we should be asking “Well, what can we do to encourage people to be responsible?” And one of the answers would be marriage, even if they made a choice, in some sense, to be homosexual.

CW: Let’s talk a bit about the word “marriage” and the term “civil union.” You’ve written both that civil unions are not a bad thing -- they are an incremental step -- but also that “civil union” does not impart the social acceptability of “marriage.” If a “civil union” were to grant all the benefits, privileges and obligations of marriage is that the same as “marriage”?

Carpenter: I think there is an important difference, but let me take this in two steps.

First, I think civil unions are a tremendous step in ultimately getting gay marriage. And they are tremendous step over no recognition of gay relationships or gay couples. So, I don’t oppose civil unions.

The second point I would make is that they cannot be the ultimate goal. And the reason civil union can’t be the ultimate goal is that marriage does a couple of very important things. First, it gives important legal protections to a relationship, legal protections that come into play in the worst times of a person‘s life.

CW: But isn‘t that what a civil union is suppose to do?

Carpenter: Yes. And that’s exactly the point I’m getting to. These protections come into play at the worst time in one’s life, when one is sick, or dead or dying or incapacitated in some way. Most protections of marriage come into play in those situations. They also come into play in helping to raise children, which many gay couples are doing. Civil unions and marriage can both do that as long as civil unions grant all these protections it is the equivalent of marriage. What basis do we have to criticize them on?

But the second thing that marriage does can’t be captured adequately by civil unions. Marriage has a long cultural and social history with important social support that comes along with it. We have a whole language that comes along with marriage, and a set of rituals -- the marriage ceremony, somebody pays for the wedding, the caterer, the announcements in the newspaper. All of these things are important.

And because we have a history, we expect people to behave in certain ways when they are married. We expect you to live together, to vacation together, to support one another. That expectation is reinforced by our families, by our friends, by our co-workers. It’s the way one person signals to another the depth of their commitment. And it’s a way that they signal to their community and their friends and colleagues the depth of their commitment, which is then reinforced.

That comes from many centuries of marriage. There is no similar history of civil unions. It may be that one day civil unions will be regarded as having all of these attributes as well, but right now, it’s literally a blank slate. To say that people are in a civil union cannot have this powerful reinforcement function that marriage has.

Ask anybody that thinks civil unions are good enough a very simple question (if they are married) -- “Would you trade in your marriage license for a civil union license?”

CW: Let me address that and bounce something off you for a reaction. Marriage, although it has a place in civil society is really a religious function. In its sacramental form, marriage is a commitment to a partner before God and a religious community. What would you say to a system that put marriage back in the churches -- let churches decide whether or not to extend marriage to gay couples -- and made civil unions a voluntary choice for both same- and opposite-sex couples. Marriage in a church would confer no special civil rights. You’d have equality before the law while retaining the sacramental aspects of marriage. Is that a viable option?

Carpenter: It would certainly be preferable to a world where we had civil unions for gay couples and marriages for straight couples. On the other hand, I don’t think it is very realistic. The reason I say that, and I’ve heard this proposal before and it’s an interesting idea, but the reason I say that is because marriage really has become a civil institution as well as a religious institution. It started out as the church blessing unions, but it has moved in the last hundred years or so in Western society to not just a religious blessing the relationship, but a civil institution as well.

We don’t tie marriage requirements to the requirements of any particular religious institution. One can be easily divorced in the United States even though the Catholic church does not recognize divorce and subsequent remarriage in most cases. You’re not required to marry in a church. In many ways we have divorced the two things; they are parallel ideas. Marriage is both a civil idea and a religious idea.

I think it is very unlikely that we are going to get a reform that says the state is going to get out of the marriage business and turn this entirely over to religion. Our law is so diffused with marriage. There is almost no part of our legal codes -- property law, criminal law, tort law, all the statues, state law federal law, local law, private institutions -- there is almost no part of our legal system that does not have elements of marriage in it and depend on in some way whether or not there is a marital bond. To extricate these two things that are so tied together, I think is not going to happen.

It’s more likely that we will accept gay couples into marriage with both its civil and religious meaning than that we will take marriage out of the civil realm and put it entirely into the religious realm. That’s my sense of it.

CW: Both of them are radical ideas if you look at it from a conservative point of view.

Carpenter: Well, in a sense, yes. Both would be a major change, but I do think that gay marriage is ultimately a deeply conservative idea. The problem is conservatives may be the last people in the world to realize it. The reason is one’s attitudes toward gay marriage tend to correlate quite strongly with one’s attitudes about homosexuality.

People that think of homosexuality as simply a benign variation of human sexuality tend to favor gay marriage. On the other hand, people that tend to view sexuality as an immoral or sinful or sick kind of orientation, maladjustment, malorientation, tend to oppose gay marriage. My view is that whichever view one takes of homosexual orientation, one ought to favor gay marriage.

Certainly if one believes that homosexuality is a benign variation of sexual orientation, there is no reason to oppose gay marriage. But even if one thinks there is something to some degree wrong with homosexuality, one has to ask the question “Given that there are homosexuals in the United States, and they are not going to be eliminated by any means acceptable to the American people, what is to be done with them?”

Are we to shut them out of traditional institutions and policies like marriage? To marginalize them, to ostracize them to where they become hostile to traditional values? Or are we to make the best of what is otherwise regarded as a bad situation. Try as much as possible to include them, to assimilate them into these traditional institutions. To ensure that even though homosexuality is something we regard as sub par as sub optimal, we make the best of it.

Now I can see where a radical would want to keep gays out of these traditional institutions. They want gays to be on the margins because that’s where gays and other groups can undermine these institutions -- criticize them, be hostile to them in various ways -- because radicals don’t like these traditional ideas.

I can see where left groups would want that. I can’t understand for the life of me why the right would want that. Why it would want this group of people on the margins of society undermining and criticizing these traditional institutions, rather than bringing them in. That’s why to me gay marriage is a conservative idea.

It’s about encouraging people to develop stable and lasting relationships that can help them and the society around them by minimizing, discouraging some of the pathologies I talked about earlier.

CW: There’s some interesting things I want to follow up on here. You talked about the language of marriage. David Frum in a National Review article made a big point about how places like Canada are removing traditional words like “husband” and “wife” -- removing the word “parent” in favor of “guardianship.” He uses this as an example of gay marriage undermining traditional marriage where as your argument is those traditions are a primary reason for gay marriage.

Carpenter: I myself don’t see any reason why we need to change the way we designate people as “husband and husband,” “wife and wife.” I see no reason to change that language. Canada may have gone in a different direction, there is no reason we have to go in that direction.

In fact, I would say that to the extent that we can help to preserve some of this traditional language, it would not only be good for marriage, it would be good for the gay couples that enter marriage because as much as possible, we want these people, these new gay couples to be entering an institution that is healthy and long lasting. Nobody that I know is fighting to enter an institution that they want to see undermined or ended. We, I at least, want to see it strengthened.

And here’s another argument I would make as to why gay marriage is a conservative cause: There is movement in this country among cultural conservatives to revive, to encourage a culture of commitment among straight couples -- limit divorce, limit illegitimacy, strengthen families. I think it will be harder to do that work if we have a subclass of the population that is undermining those very values by being promiscuous, by not committing to relationships, by not committing to families. I think it will be harder to do that work if we have this subclass shut out of this institution.

To the extent that we bring more people in and say “marriage is really for you as well and we expect it of you,” I think we actually serve the cause of redeveloping a culture of commitment in the country.

CW: Putting your comments in the context of the current “Defense of Marriage” amendments being proposed in various states -- the recently overturned Nebraska legislation and the Minnesota amendment -- and your comments on civil unions. Do you see those amendments as excluding the possibility of civil unions?

Carpenter: It’s possible. The drafters of these amendments have been fairly vague about what the implications are. I think these amendments are completely unnecessary, especially the Minnesota amendment. There is just no justification for it. There’s not even a lawsuit filed in Minnesota. There’s been no decision overturning the marriage laws in Minnesota.

CW: True. But the argument is that the amendments are prophylactic in that they are going to prevent the courts from . . .

Carpenter: Well, if we’re going to start passing constituional amendments based on what some hypothetical court at some date in the future might do, as we sit here today, I can think of about a thousand amendments we ought to pass to the Minnesota state constitution and the United States constitution. We have never used the constitutional process before to deal with problems that might arise in the future.

CW: It arose in Massachusetts.

Carpenter: And Massachusetts is actually dealing with that. If Massachusetts believes that citizens of Massachusetts as represented by the legislature disagree with the decision, they have the process to overturn that decision.

CW: But people don’t want that to happen here is the reason given. We don’t want the Massachusetts situation, we don’t want to take remedial action after something happens. We want to prevent Massachusetts from happening here -- at least that’s the argument.

Carpenter: Well, again, all I would say is that we don’t even have a law suit filed, we have no indication that the state judiciary is going to head in this direction. In fact, the only time Minnesota courts have looked at this issue, Minnesota was one of the first states in the union, back in the early 1970s, to say that there was no state constitutional right to same-sex marriage. I just don’t see a danger of this happening.

I don’t think that this amendment is passed with a reasonable fear that the Minnesota courts are going to force gay marriage on Minnesota. I think it is coming out of different motivation.

CW: Which is . . . .

Carpenter: I think there’s a political motivation. I think, especially in the Republican party, it helps as a political issue. You can frighten people with gay marriage and get them to vote for you even though we have no decisions in Minnesota. Not even at the lowest level. We don’t even have a lawsuit filed much less any favorable decisions.

So, all I would say is that I can think of a lot of ways the courts might be activist in the near future. If that’s going to be the basis on which we are going to start sending amendments to the voters of this state, then we’re going to have lots of amendments that we’re going to be dealing with. That’s not the reason this amendment is being proposed, because again, if it were, then I think we‘d have lots of amendments being proposed.

CW: The Nebraska decision -- still a lot of confusion because it is relatively recent -- but what I hear is 72 percent of people in Nebraska wanted this law, why is a court overturning it?

Carpenter: Well, first of all, about Nebraska. If you actually look at the Nebraska amendment, it does not just deal with gay marriage. One of the problems with the state amendments that are being proposed is that there is a bait and switch going on. The proponents of these amendments are saying we just want to end gay marriage, but in fact, as is the case in Nebraska, the amendment appears to do much more than that.

It appears to stop the recognition of civil unions, domestic partnerships. Some of them may even private contracts between two people of the same sex if they seem to involve some of the benefits of marriage like transferring property to one another and so on. Even private contracts.

In Ohio they passed an amendment. Ohio is one of these broad amendments that didn’t just deal with marriage even though it was played politically as if just dealt with marriage. Two courts in Ohio have now said that the domestic violence statutes in that state do no apply to unmarried couples because of the amendment.

That has nothing to do with gay marriage. It is a much broader amendment than that. The Nebraska amendment is one of the very broad amendments that was passed, so I think we have to distinguish that court decision from any other that just deal specifically with the issue of gay marriage. I am concerned that he Bachmann amendment here in Minnesota may also be a very broad amendment that is being played to the legislature and the people of Minnesota as if it were only about gay marriage. I think it may have broader implications.

There was a second issue you wanted to ask me about on that -- the people. We are not a pure democracy. We are a constitutional democracy. That means that the laws we pass have to be within the powers of whatever relevant constitution is at stake and not violate the rights of the people as protected in that constitution. Then of course, the debate becomes well what are the powers, what are the rights protected by the constitution. But the mere fact that the people vote for something in an election is not by itself to make that enactment immune from any scrutiny by courts. Conservatives would never say that.

New Jersey, for example, passed a discrimination act protecting people from discrimination based on sexual orientation. And that was applied to the Boy Scouts. People voted for that through their legislature. They voted for it. The Supreme Court said that’s unconstitutional. My guess is that not many of your conservative readers disagree with that decision. In fact, I agree with that decision.

CW: Theoretically, is it possible to draft a constitutional amendment banning gay marriage that is narrow enough to pass constitutional muster?

Carpenter: Sure. But here’s the other thing that’s going on. We’re being told that we need these amendments because the courts are about to force gay marriage on our state or our country in the case of a federal amendment. That’s the justification. But all of these amendments, even the most narrow ones, do more than just foreclose court involvement. All of them say no gay marriage, even if the legislature decides we want to experiment with gay marriage. They don’t just take courts out of it.

If the concern was really the courts, all you would really have to do is pass and amendment that says there shall be no -- call it jurisdiction -- over the decisions of the legislature regarding the gender requirements of marriage or words to that effect. If that were the language, that would leave the legislature and the people free to decide in the future if we want to have gay marriage, but take the courts out of it.

No amendment in the country has proposed that, even though that’s the stated fear, that’s the supposed bugaboo of the anti-gay marriage movement -- that the courts are forcing this on the people. These amendments are all much broader than that. Even the narrowest of them.

CW: Isn’t that already a part of the federal constitution that the legislature can determine what the courts have jurisdiction over?

Carpenter: There is a provision of the constitution that deals with jurisdiction. There is a very complicated debate about what exactly that means and how far you could go with it. Could, for example, the Congress determine the court has no jurisdiction to hear race discrimination cases. They tried to do that by the way in the 1950s after Brown v Board of Education. Southern congressmen and others that didn’t like the decision tried to pass statutes that would have stripped the courts of jurisdiction to hear school discrimination cases.

It’s an open question of how far that goes, but you could certainly pass an amendment that said that, and there‘s no question about that. That’s not what any of these amendments do. That’s what I mean by “bait and switch.” There’s a very narrow concern about judges, but then we get these amendments about all sorts of other issues -- shutting out gay marriage totally, civil unions are out domestic partnerships are out, maybe even private contracts are out. It’s a very deceptive campaign in many ways.

CW: That’s an interesting point that I’ve not seen elsewhere.

Carpenter: Narrow concern, very broad amendment. That’s what we’re getting.

CW: Let’s go to the next step when the conversation is gay marriage, the question that goes from the ridiculous -- I can marry my cell phone -- to the serious concern what’s to stop legal incest or polygamy. It’s the slippery slope argument -- how can we admit gay marriage and not polygamy and other relationships?

Carpenter: I offered in this piece -- I think you linked to it and quoted from it on your web site -- there are three stock responses to any slippery slope argument.

One is, if we don’t take the proposed step -- in this case allowing gay marriage -- then the slope is going to slide both ways and we’ll fall back on making marriage more and more restrictive in ways that would be bad. The second stock response would be “Yes, we’ll slide all the way down the slope -- in this case polygamy or whatever -- and what’s wrong with that? There‘s nothing wrong with polygamy.” That’s the second kind of response. The third is this step will not take us down the slippery slope because there is a principled stopping point.

My argument is really the third argument. I don’t think either of the first two work very well. So let me just talk about this third argument. I don’t see anything in the argument for gay marriage that takes us a step down any slope toward any form of non-monogamous marriage. The argument for gay marriage is kind of step to the side on the slippery slope rather than a step down.

Why would an argument for a new form of monogamous marriage lead to a new form of polygamous marriage? Well, if you’re arguing that we should have gay marriage because these people love each other, and therefore they should be able to marry, then certainly, that is a slippery slope towards polygamy and all sorts of other forms of marriage, incestuous marriage, whatever. But I think that misconceives the argument for gay marriage.

The argument for gay marriage is really both individualistic and communitarian. It is individualistic in that it involves benefits to the individuals and families involved -- the gay families, many that are raising children and so on. That part of the argument, it seems to me, might also apply to some polygamous marriages. But the other point that I think applies to gay marriage is that there are communitarian benefits. There are benefits to the whole community in recognizing same-sex marriages just the way we recognize opposite-se marriages. There we make arguments about the stability of these relationships, reducing the pathologies that I talked about earlier, strengthening the families and so on. That benefit’s the whole community.

Polygamy has an entire history all its own. There are large debates about the effects of polygamy on the people involved and on their society. About 75 percent of human societies have at one time or another had polygamy or tried polygamy. Almost all have rejected it. Unlike gay marriage polygamy is something we have had experience with.

Gay marriage we have had no experience with and we are throwing the dice to some extent. I think the results will be good, but no one can be absolutely certain. With polygamy, this is a form we have tried and rejected repeatedly in human history. And part of the reason for that is that polygamy has tended to correlate with societies that hare highly illiberal, uneducated, undemocratic and are not egalitarian to the role of women.

CW: Let me jump in here with a criticism I hear of your argument -- That’s what you’re saying, but somewhere out there even as we speak there are groups forming, plotting, planning to push for polygamous marriage. Once gay marriage is accepted, they‘re going to bring their case forward. Gay marriage pushes the battle line back. Now we’re going to have to fight the polygamy battle, the NAMBLA battle, the incest battle.

Carpenter: My response to that is there are already people arguing for polygamous marriage whether we have gay marriage or not.

CW: Doesn’t that give them a better standing if we have gay marriage?

Carpenter: Why? That’s my point. What is there about accepting gay marriage that advances the argument for polygamy? I don’t see anything.

If the argument for gay marriage were only “we love each other, therefore we should be able to get married” we’d advance the case of all kinds of marriages. But that’s not the argument. It oversimplifies the argument for gay marriage to say that.

In other words, to believe that there is a slippery slope to other forms of marriage, one has to misrepresent and oversimplify the argument for gay marriage. It’s not just “we love each an so we ought to be able to marry.” It is not just that.

We can have a discussion about polygamy after gay marriage, before gay marriage, during the debate about gay marriage. But it’s a different discussion. It’s decided on its own merits.

Let me tell you why I think this is important. There were proposals to allow interracial marriages. One of the reasons people gave that we should not allow interracial marriage is, that this will lead to among other things, incestuous marriage and polygamy. People have long argued that any time you make a change in marriage -- in the definition of marriage -- anytime you make a change, you open up the institution to all sorts of arguments from other people.

There’s a great quote from the Tennessee Supreme Court on this. Basically an interracial couple made an argument in the Tennessee Supreme Court that their marriage ought to be recognized. The court responded by saying if we allow this kind of marriage it will lead towards, as this 19th century court put it, “the Turk establishing his harem at the doors of the capitol.”

Anytime a reform in marriage has been proposed, some critics have come along to claim the sky is falling. If you can show me how it is that gay marriage causes the sky to fall, I’ll listen. But just the fact that we are making a change in marriage is not enough to show me that the sky is falling.

CW: Let me ask a question that has been asked of me?. Who has the burden of proof when we want to make a change to tradition? Does it lie with those defending the status quo to prove the change is harmful; or does it lie with those proposing the change to prove that it is beneficial?

Carpenter: I’m a conservative. Any conservative believes that -- should believe that -- any Burkian conservative should believe that the burden of proof lies with those advocating change. So the burden of proof is on me and all gay marriage advocates.

What we’re saying is that we can meet the burden of proof. There is every reason to believe that gay marriage will benefit gay families and therefore our society. It’s certainly not going to hurt them. It can only have some benefit. No one would argue that it is going to hurt these families to be able to be married. It‘s going to have some benefit, the only question is what is the magnitude of the benefit.

On the other hand, there is no reason to believe that allowing gay couples to marry is going to hurt straight couples that are married -- cause them not to marry, leave their children out in the streets or whatever consequence one might envision. These things are very unlikely to happen. We think we can meet the burden of proof. It is our burden of proof.

CW: Still, the argument is made that gay marriage will disassociate marriage from some of its core purpose -- procreation, perpetuation of society. Gay marriage will communicate to people that a relationship that is not based on these core purposes will diminish the institution of marriage.

Carpenter: I hear that argument. There’s a small kernel of truth in the argument that marriage has the function of helping us to perpetuate ourselves, having children raised in good stable environments and so on. There is something to that argument. The problem is, gay marriage does nothing to that issue. It does nothing to that basic function of marriage.

First of all, we don’t require anyone to procreate in order to marry; we never have and we never will. We allow people to marry even though they don’t want to procreate and will say so or that can’t procreate and will say so if we asked them. We allow octogenarians to marry -- we’re all happy when they marry. We don’t say when an octogenarian marries how horrible it is “they are destroying the institution of marriage and the purposes of marriage.” No one says things like that. Everybody is happy for them.

So to some extent we’ve already gone down what might be called the slippery slope of separating marriage from necessary procreation. Gay marriage doesn’t do anything about that. Although gay couples cannot procreate as a couple, they can procreate and in fact, raise children. And they’re going to continue to raise children.

The only question is will these children, raised in gay households, enjoy the benefits and protections of having their parents married, or will they not. Which is better for the children? Is it better for their parents to be married or not? It’s better for their parents to be married. It seems to me, to any conservative, that should be obvious.

Now if you want to say, let’s take all children away from their gay parents, you can make that argument. I don’t hear many people making that argument. It would be an unbelievably cruel thing to do to these families and children -- to be taken away from the only parents they‘ve eve known. I can’t see anyone seriously making that argument.

But if you don’t make that argument, then by opposing gay marriage, you are consigning these children to raised in families that will never enjoy the benefits and protections of marriage. You’re not adding any protections to the children of straight couples; you’re making sure that these children of same-sex couples will not get the protections of marriage -- which is another of the conservative arguments, it seems to be, for supporting gay marriages.

CW: One final area I’d like to cover. You wrote an article entitled “Keep the Pride -- Ditch the Parade.” Let’s talk a little about the advocacy of gay marriage. To put my bias on the table, I know Michele Bachmann; I like Michele Bachmann. I think she’s taken a lot of very personal attacks for her stance. I sit here listening to you and I hear a very reasoned set of arguments for gay marriage. I go out on the street, and I see a very militant advocacy for gay marriage. I see gay advocacy. I see a gay agenda. I don’t see what I would say is a conservative defense of gay marriage. That’s what the rank and file conservatives see, and frankly, that’s what they are afraid of -- the gay agenda moving into the schools. Can you speak to that? Let’s not discount conservative fears -- they are real. But how can the “gay movement” alleviate them?

Carpenter: I think there have been a couple of problems in the way we, gay marriage advocates, have talked about this issue. One of them is that we have tended to make rights-based arguments; that is we have tended to say gay marriage should be allowed because we have a right to marry. I don’t think that is very persuasive to people, nor should it be. One doesn’t have a right to something that would be harmful, for example.

So, we’re getting the cart before the horse. We have to make the argument first that it will not be harmful to our society to recognize these families in marriage, but that it will be beneficial and it will be beneficial in lots of ways -- to the families, to the children, to the culture, to society in general. We have to make that argument first and pitch the argument in those terms. That is the heart of the matter. It is not about rights. That is the wrong argument to be making.

The other thing I think is that at the end of the day, we have to be able to -- and gay marriage advocates have been afraid of this -- we have to acknowledge the deep conservatism of this cause. In many ways, the gay community and the conservative community have been at odds with each other for so long that they view each other with mutual suspicion. To be a conservative is to be against any measure of inclusion for gays, and to be gay is to be against anything conservatives stand for.

Instead, there is an incredible overlap. If you look at the causes that many gay people are fighting today, they are deeply conservative causes. Marriage is the most obvious example. Joining the Boy Scouts, being a boy scout. Serving one’s country in the military.

CW: School choice.

Carpenter: School choice! Absolutely! I’ve written a column about that. Crime --
gay people live disproportionately in cities and crime is especially bad in cities. There is no reason why gay politics and conservative politics cannot overlap in trying to fight crime and so on.

So on the side of the gay community, we have to talk about these issues, we have to learn the language of conservatism, because ultimately we are fighting to be included in these traditional institutions. That’s what I think we have to do on our side. I mean the gay side. I happen to straddle both sides myself personally.

Here’s another thing we need to do. We need to stop labeling everybody who opposes gay marriage as a bigot. We need to stop it. First of all, it’s not true. There are many people who oppose gay marriage, who are uncomfortable with it, because they believe it represents a very profound change. They are concerned about the consequences -- even if they don’t know what they are.

There can be unintended consequences. Even well intentioned reforms people can be rightly concerned about. That doesn’t mean that they are necessarily deeply bigoted and viscerally opposed to homosexuals as persons. So it’s just wrong. . . Some opponents of gay marriage who viscerally hate gay people and recoil at the thought of homosexuals. I don’t think that is the most important, most profound basis for the objection to gay marriage.

Second, it’s just bad politics. You don’t win anybody over in an argument by starting out saying “You’re a bigot.”

CW: Going forward, do you see the kind of ideas you’re expressing today taking root in the gay community?

Carpenter: I think so. Gay people have the same needs for affection and stability and commitment that anyone else has.

CW: True. But when you talk about political movements -- I’m a child of the 60s and 70s -- often what you see is the most radical element of a movement out in front. That was true in the 60s and 70s . . . .

Carpenter: Yup

CW: . . . and I think that’s true in the gay movement. In your article you talk about the Gay Pride Parade led by the woman with the whip.

Carpenter: It’s changing, and here’s why it’s changing. Back in the 1960s and 1970s, the only people who were coming out were those people who had nothing left to lose. The people on the margins of society with marginal politics, marginal lives and marginal lifestyles. They had nothing to lose. They weren’t working as top lawyers in the most reputable law firms. They weren‘t in academia. They weren‘t politicians. These were people that were already pretty bad off. So they could come out and espouse ideas and lead the way without much fear.

Because they did lead the way, they have created a beast that they can no longer control. Now you don’t just have radical leftists coming out of the closet, you’ve got conservative couples living in the suburbs coming out of the closet.

They don’t like high taxes. They don’t like regulation. They love the country. They want it to be vigilant against terrorism. And they want to be married. And these people are presenting a very different face to homosexuality than anyone has ever seen before. In the coming decades, what I regard as a more representative sample of the gay population will continue to emerge and make their voices heard. It’s already happening.

CW: Conversely, do you see conservatives coming forward . . . .

Carpenter: Yes, I do, but I don’t want to separate morality from gay marriage. To me gay marriage is a moral cause. I think it should be expressed in moral terms. Gay marriage is a moral idea. But I do know what you mean.

Yes, I do see conservatives moving toward a favorable view of gay marriage. It takes conservatives a while to get used to the idea of some change. But once they do. Once conservatives are, for lack of a better word, “converted” to an idea, they are its most effective defenders.

CW: The true believer syndrome.

Carpenter. Yes. You do have conservatives now who are saying “you know, we ought to at least try this somewhere.”

My own view is federalism. Under the idea of federalism, we ought to try this in a few states and see what happens. I mean, I don’t think anything bad will happen, but am I absolutely certain? No. I think it’s a very low chance, but let’s see what happens.

There are conservatives that are now willing to say this. George Will has said this. David Brooks has come out in favor of same-sex marriage. Other conservatives are willing to support at least some degree of recognition. Not full marriage, but let’s try something short of marriage. See what happens. Move a little more. See what happens. Move a little more. See what happens.

That’s the conservative instrumentalist approach. No conservatives that I know want to see the Supreme Court issue a decision tomorrow forcing gay marriage on the country. No one. Including myself.

The two worst things that could happen to the gay marriage movement. The first, the worst thing that could happen is passage of the federal marriage amendment. That’ the worst thing. The second worst thing would be a decision from the Supreme Court forcing the whole country to accept gay marriage. That would be the second worst thing.

Both of those things, conservatives ought to oppose.

CW: And I thing that’s a good place to stop. Thanks very much for your time.

Carpenter: Thank you. It was my pleasure.

[Actual Post Date 6/8/2005]