Ross Douthat believes tradition-based rules can be socially useful even they are arbitrary and inconsistent:
One point I didn’t get to, though, is the extent to which both of these issues, pot and gambling, illustrate what one might call the rationalizing impulse in modern American politics, which seeks perfect fairness and consistency at the expense of compromises rooted in the accidents of history, and which makes it hard for conservatives to defend older, inherently-arbitrary arrangements even when they make practical sense.
If I prefer a toke to a drink, why should the law draw some spurious, culturally contingent distinction that makes my preference criminal, and consigns dealers to prison while bartenders walk free? If we restrict substances that can damage their users, why not do the fair thing and make the restrictions uniform?
The answer is … well, the answer in both cases is essentially contingent, historicist, tradition-minded. We have these inherited limits — geographic, legal — on certain vices, certain self-destructive activities. They are inherently arbitrary, yes — but they also may do useful work regulating how easily and casually and frequently people indulge in those vices, and they may strike a balance between puritanism and permissiveness that’s socially useful even if isn’t perfectly consistent or obviously fair.
While I’m sympathetic to this reasoning, you don’t win allies by suggesting tradition is more important than fairness. Fairness is a basic human desire people, and people will sacrifice their own well-being to achieve it. Moreover, tradition alone was often used to perpetuate policies we now acknowledge as deeply harmful. It’s not surprising such arguments now carry less weight. Even I don’t think contingent, subjective arguments should trump fairness, and I clearly value them.
In fact, it’s a sense of fairness that motivates much of my writing. How have we decided creationists are a problem to be solved without any evidence their faith causes harm? If our society is so permissively-inclined and consistent, then surely someone should have questioned scientists’ incorrect dubious empirical claims. Since no one has, this is one issue at least where we need more fairness and consistency. I can accept that society primarily uses the harm principle to limit individual rights. I have a harder time accepting that this principle randomly doesn’t apply to certain types of Christians.
If this double-standard didn’t exist, I suspect scientists would have no choice but to defend their case with tradition-based, arbitrary, moral arguments: “Yeah there’s no evidence whatsoever that believing in creationism causes harm. And sure we respect individual rights. But evolution is true dammit! Science and truth matter. We can’t just embrace individual rights all the time! Even if it’s arbitrary, we need a line somewhere because once crossed, they’re hard to redraw.”
Right now scientists don’t have to acknowledge these moral dimensions. We’re allowed to pretend our stance is rigorous and sneak in our subjective values without anyone realizing. It’s the flip-side of inconsistently applying the harm principle. Scientists have free reign to promote their subjective values while, increasingly, others are attacked for doing the same. This deeply unfair outcome would not happen if we were consistent in our principles.
Somewhat paradoxically, Douthat could bolster his case by fully embracing permissive, rights-based discourse. That approach would at least put everyone on an equal footing. Scientists would no longer be able to attack creationists with the sloppy, careless arguments we now use. We would be forced to acknowledge our own arbitrary, subjective values. Maybe that would help everyone recognize the limits of the harm principle, and accept there are times we all have to rely on arbitrary, moral discourse. Rather than opposing fairness and consistency, getting others to agree with your premise is a much better way to make your case.