Wednesday, February 09, 2005

Gay Marriage

Here's some applied ethics:

As many of you may have heard Bush's State of the Union Address, I think this is somewhat relevant. I remember attending two discussions by Robert Audi, one at my old undergrad and one here at Western. At both, Audi mentioned his principle of secular rationale. To give my best reinterpretation (I'm sure you can find it in a journal somewhere, perhaps I'll look it up), I will say that his principle basically says that:

We should only endorse a law for which there is a prima facie secular reason for doing so.

So, imagining the abortion debate, we cannot use the claim that a fetus has a soul (if "soul" is to be interpreted as a Christian or otherwise religious term). So, anti-abortionists cannot use this as a reason to outlaw abortion. Note, however, that anti-abortionists can feel this way more strongly than secular reasons, but there must be secular reasons that they put forward (hence the prima facie component). Regarding abortion, the secular reasons put forward are interesting and worth debate, but we should keep that to a different post.

My interest is to talk about homosexual marriage. Perhaps there are secular reasons for keeping homosexuals from having marriage rights, but here is an excerpt from Bush's State of the Union address:

Our second great responsibility to our children and grandchildren is to honor and to pass along the values that sustain a free society. So many of my generation, after a long journey, have come home to family and faith, and are determined to bring up responsible, moral children. Government is not the source of these values, but government should never undermine them.

Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges. For the good of families, children, and society, I support a constitutional amendment to protect the institution of marriage. (Applause.)

Although I think the quote speaks for itself, I think that logical analysis can make clear what Bush is saying.

First off, he seems to separate "many of his generation" from all of his generation (plus the rest of America). I believe it is Bush's duty to defend the rights of all of this nation's citizens.

Second, it seems that by supporting a ban on gay marriage, we are keeping the government from "undermining" our ability to bring up "moral children." What assumptions are we making? Is homosexuality immoral? According to whose standards? I can think of several in particular for our society: the most common versions of Christianity. Keep in mind Audi's principle. I have yet to find a (moderately reasonable) secular reason for thinking that homosexuality is immoral, although I would be interested to hear one. For obviously flawed secular reasons, see further comments.

Third, Bush says that marriage is a sacred institution. It is also, a legal and societal institution. We must not conflate these. Perhaps we should protect marriage as a sacred institution (we can give Church's the right to deny marriage to certain [i.e. homosexual] individuals), but we must also understand the motivations for marriage as a legal and/or societal institution.

As a legal instution, the purpose of marriage is to offer people protection and give them rights for various reasons. It is well known that when people get married, they promise to give up certain rights in the interests of the other (in economics, we can think of marriage as an opportunity cost). For example, a housewife may promise to stay at home and raise children. She is giving up various opportunities for the sake of another individual. That being said, if the other individual should choose to renege on the marriage, he has affected the other in a negative way, and is duly responsible for such negative affects. This can be characterized as a contractual view of marriage. In such instances, the wife (or husband) is entitled to alimony (for a given period of time). Homosexuals, since they are not allowed to have the rights of marriage, are susceptible to a type of abandonment without compensation. This makes a homosexual long-term relationship a higher opportunity cost (legally) than a heterosexual one, which is unfair.

Furthermore, as a Societal institution, marriage can (although often times may not) provide a more stable environment for raising a family. Of course, a male homosexual couple could not have children on their own, but adoption is always an option. For female couples, they can choose to artificially inseminate. Simply because these couples cannot produce a family in a "typical" fashion does not imply that they should not have the right to raise a family so long as they can acquire one by legal means. An obvious counterexample to a rejection of this claim would be infertile couples, or any other family that adopts or artificially inseminates. Furthermore, we allow marriage when no family is intended (or possible), such as older couples or job-oriented couples. Perhaps we should only give benefits to people who have children based in light of this societal view, but that would simply mean that "typical" marriage would not be justified from a society viewpoint, only having children (by any legal means) would.

Anyway, there is more to the debate, but I'll keep it to this for now.

95 Comments:

At 12:22 AM, February 10, 2005, Blogger Joshua_Duncan said...

I think I would begin building a secular case for limiting marriage with Bush's "foundation of society" comment. When you redefine a building block of society in a fairly radical way it can have unforseen negative consequences. I don't have a robust case, but that's where I would start.

 
At 9:05 AM, February 10, 2005, Blogger Johnny-Dee said...

Why is a secular reason supposed to be the common ground to which everyone can appeal? When an overwhelming majority of a nation do not have a strictly secular outlook, using this principle will hardly reflect the will of the people. Just look at the overwhelming votes in every state (both red and blue states) that proposed an ammendment to block same-sex marriage.

But even on "secular grounds" it is possible to establish a case not to expand the legal definition of marriage to include same-sex marriages, multiple-partner marriages, human-animal marriages, incestual marriage, and other unions. (Some philosophers who represent this case include J. Budziszewski and Francis Beckwith.)

Of course, the will of the people have been wrong before (e.g., slavery, segregation, etc.). If there are good moral arguments to support same-sex marriage, then they should be taken seriously.

 
At 10:02 AM, February 10, 2005, Anonymous Anonymous said...

This principle appears to be an attempt to simply define out of existence the arguments of people of faith (similar to defining "science" as the equivalent of naturalism). While all political arguments should be based on an appeal to reason--and not simple fideism--there are good philisophical reasons to argue for the existence of the soul. See, e.g., the work of J.P. Moreland and Gary Habermas in this area.

 
At 11:32 AM, February 10, 2005, Blogger Chris said...

The principle isn't defining out of existence the arguments of theists. It's merely pointing out that we shouldn't make laws simply based on faith. I can't think of exactly where, but my recollection of the bible has it that atheists will go to hell (or at least not get into heaven). (Stop me if I'm incorrect.) But, our nation should not make laws that punish atheists legally by denouncing their lack of faith as a criminal sin.

Our legal system should require secular, logically worked-out reasons. As Johnny-Dee pointed out, the non-secular majority has done terrible things in the past, often in the name of their faith, or at least justifying their actions in light of their faith. This isn't to say that secular persons are infallible, they have made equally terrible mistakes. My guess is, however, that all people or groups that have acted unethically have done so while lacking a strong secular argument for their position.

So, fine, ban gay-marriage, but lets hear some arguments for it other than it violates a sacred institution or offends aesthetic taste. Cocodrylo makes a good point that, perhaps marriage is a sacred religious institution, but being recognized by the church and being recognized by the state are wholly different things.

And, let's face it people, marriage isn't a sacred institution anyway. I'm really sick of hearing that. Proof that marriage is not sacred:

(1) Divorce rate.
(2) Las Vegas.
(3) Eighty year old men married to twenty year old women. Oh, by the way, the men are rich and have terminal illness.
(4) Britney Spears.
(5) Level of infidelity.

And we're worried about two people who truly love each other getting married?

 
At 12:50 PM, February 10, 2005, Anonymous Anonymous said...

If only "secular" arguments were allowed in the political arena, then the foundational documents of our nation would have been out of bounds--we "are endowed by our Creator with certain inalienable rights." Similarly, the civil rights movement of the 1950s was led by Christians (e.g., the Rev. MLK, Jr.) who argued that all people should be respected because they are made in the image of God. Arguments reasoning from a premise of theism are woven throughout our history, and will always be legitimate, because theism is a "properly basic" belief (see the work of Alvin Plantinga).

 
At 5:51 PM, February 10, 2005, Blogger Ben said...

This is, most specifically, a response to John D.'s comments:

(1) I think you are confusing secular with "atheist" or anti-religious (or at least a comprehensive non-religious worldview). Secular of course *is* sometimes used in this sense, but in these kinds of political "theories of justice" type contexts it is usually not. Secular just means not appealing to religious reasons. E.g., in a society where 50% of the public was composed of strongly believing Hindus and 50% of the public was composed of strongly believing Muslims, the sorts of reasons that the two groups could agree on as grounding public policy would still be "secular" reasons in this sense. Again, it doesn't mean some sort of comprehensive worldview denying God, the kind of thing that religious believers would be excluded from, it just means not appealing to controversial religious perspectives (e.g. "homosexuality is wrong because the Koran says it is") that not every one necessarily shares...thus a "secular" rationale is one that excludes neither religious people or non-religious people.

(2) Rationales for not expanding the legal definition of gay marraige to encompass long-term monagomous same-sex unions between consenting adult human males or consenting adult human females would be a very different animal from rationales for not expanding the legal definition of marraige to accomodate such things as bestiality, pedophilia or even polygamy. These are surely very different questions, as evidenced by the radical difference between accepted social attitudes--even many conservative religious opponents of gay marraige take umbrace to being accused of "homophobia" and even many proponents of the proposed Federal Marraige Amendment have pointed to civil unions as an acceptable alternative to outright marraige, whereas bestiality and pedophilia are illegal and have zero social acceptance. No one would be offended by being called a "bestialophobe."

There are also at least possible historical counter-examples to any kind of implicit slippery slope argument made by those who like to lump equal marraige rights for the estimated 5-10% of the public who are homosexual (or at least bisexual) and thus might at some point fall in love with and wish to marry some one of the same sex in with hypothetical extension of marraige to accomodate bestiality or pedophilia. E.g. at one time historically in the U.S. interracial marraiges were explicitly illegal in many states (probably in at least as many places as have adopted specific legislation to stop same-sex marraiges from taking place) and widely socially unacceptable even where they were technically legal. Both social acceptability and legal standards have radically altered since then, with no evidence of a resulting slide on a slippery slope from expanding the definition of marraige from "a union between a man and a woman of the same race" to "a unon between a man and a woman" towards polygamy or marraiges between men and dogs.

Or, on the other end, there's the fact that implicit biblical (at least Old Testament) definition of marraige as a union between one man and one or more women has been abandoned in most countries in favor of banning polyamorous marraiges, with no slide down a slippery slope towards banning heterosexual marraige alltogether.

 
At 6:22 PM, February 10, 2005, Blogger Ben said...

Re-reading both John's comments and my response, I realized that I was missing something important: his request for positive arguments for equal marraige rights. I think some of those were provided quite nicely in Quentin's post, but to re-cap: it unfairly disadvantages gay and lesbian couples as far as such things as hospital visitation rights, child custody rights after the death of one partner, adoption, spousal health care coverage, etc., etc. I think that this is sufficient to create a case for marraige rights in the absence of any convincing argument for banning such marraiges that doesn't entirely rely on religious considerations....if, that is to say, one accepts the "secular rationale" principle that religious majorities may only force minorities to adhere to their standards of behavior if good reasons can be cited that do not rely on controversial religious premises.

If one does not accept that premise, then that is a much larger and more complex discussion. I freely admit that apart from a vague moral intuition that, given that (as Rawls liked to point out) nation-states are not voluntary associations, public policy should be separated from such premises as much as possible so that every one can more or less pluralistically get along, I really don't have a positive argument for the "secular rationale" principle itself if that is what's in dispute. It's certainly primarily a moral principle rather than a legal one, since even the biggest church-state separationists probably can't really argue that mere religious motivations constitute "promotion of religion" in the same sense as mandatory school prayers or posting religious commandments in court rooms, since after all--even if one accepts the principle that religiously motivated legislation is only OK if convincing secular rationales exist--much legislation on both sides *is* as a factual matter motivated by religious concerns (the religious rhetoric of the civil rights movement springs to mind).

I do think, moving from moral issues to legal ones, that on entirely separate grounds a good constitutional argument for equal marraige rights can be made on the basis of the 14th Amendment's equal protection clause. As some talk-radio hosts are fond of pointing out, there is no constitutional right to marraige, but that's a separate issue. There is surely no constitutional right to go fishing, and the state would be well within its rights not to give out any fishing lisences to any one, but it would as I undertand it be a violation of the equal protection clause (in the broad sense that constitutional scholars and judges have given it in over the last few generations) to, say, have a government agency refuse to give fishing lisences to black fishermen but be willing to give them white ones. Similarly (though I certainly can't claim to know the relevant legal issues backwards and forwards) I imagine that a pro-gay-rights Supreme Court majority in the future could plausible argue that while the state is not required to give any one marraige lisences, if it chooses to do so, it must give them equally to straight and gay couples. This would at least certainly not be a terribly more radical reading of the relevant constitutional provisions than many rights-expanding Supreme Court decisions in the past.

Its also worth noting, I think, that its not just a straightforward issue of voters vs. judges, and that the issue is more often than not raised by the desire of elected Mayors and elected County Clerks in places like San Fransisco, CA and new Palz, NY (and perhaps NY, NY sometime soon) to follow the wishes of their constituents by giving out marraige lisences to same-sex couples. This would be, I'd think, precisely the kind of cause that would warm the hearts of states-rights conservatives who don't think that the federal government should meddle in the autonomous operations of local governments.

 
At 9:59 AM, February 11, 2005, Anonymous Anonymous said...

The problem with the 14th amendment argument is that government is constitutionally allowed to legislate differently toward different classes all the time--only if the class is a "suspect" class (e.g., race) is "strict scrutiny" applied to the classification, in which case the law passes muster only if there is a "compelling" governmental interest in favor of it. Sexual preference is not equivalent to race, since it is determined by the behavior of the individual, and regardless, preservation of the foundational institution of society--traditional marriage--would provide government a compelling interest for denying marriage to same-sex partners.

 
At 1:55 PM, February 11, 2005, Blogger Ben said...

Anonymous,

I think you're missing the point re: the 14th Amendment on two counts. First of all, I don't say that this would be the only possible interpretation of it in this context, or one the court would be forced to take, but rather one that a Court so inclined would be well within its right to take given the precedents. As in any rights-expanding decision, there are subjective issues on the table that tilt how general constitutional principles are interpreted (e.g. Brown vs. the Board of Education was decided on the basis of sociological arguments that in practice racially separated education would never be equal, not on any kind of a priori argument that segregation was unconstitutional regardless of its results.) If it came down on the side of sexual orientation as equivalent to race, gender, etc., and *if* it didn't buy any kind of compelling interest in discrimination argument, then that would be how they would decide.


Secondly, whether sexual orientation is equivalent to race in the sense of being involuntary or is simply a "lifestyle choice" is precisely the bone of contention between people generally sympathetic to expansion of legal rights and those generally unsympathetic to it, and cannot be agreed on in advance of specific argumentation. "Preserving the foundation of society" is highly abstract, speculative and dubious, and thus I'd have my doubts about at it as a legitimate issue of "compelling interest" even if I agreed that it was the case...which, again, is hardly clear one way or the other a priori. "Compelling interests" are usually a little bit more empirically straight-forward and short-term, e.g. stopping Islamic fundamentalists from blowing up planes. Many people would claim, correctly or not, that religious belief and observance is foundational to a healthy society and that any society without this foundation will crubmle. Not so long ago historically, I think nearly every one would have accepted this claim. Still, now hardly any one (at least in western countries) takes this as a case for banning atheism.

Incidentally, as far as an earlier post's reference to the Declaration of Independance, its worth noting that this document has no legal status in U.S. law and that the Constitution contains no references to God. And be carefully of citing Platinga's "properly basic" argument, since Plantinga himself admits that if construed as an attempt to convince the unbeliever it would be a circular argument--it just asserts that those who start from a position of religious faith aren't doing anything epistemically irresponsible....which is a point with no bearing on this discussion, particularly since it applies equally well to the justification of the beleifs members of any number of different religions with incompatible beliefs.

 
At 6:24 PM, February 11, 2005, Anonymous Anonymous said...

1) Regarding the 14th Amendment, it is certainly true that "subjective" considerations have determined Supreme Court decisions in the past (leading to such absurd results as the Dred Scott case, or the basing of a right to abortion on nothing more than a "penumbra" emanating from the bill of rights). Such a jurisprudentially irresponsible approach could also lead to recognition of a "right" to gay marriage, as it did the Supreme Court of Massachusetts. However, even liberal Supreme Court scholars such as Jeffrey Rosen of the New Republic consider that decision a results-driven constitutional absurdity.

2) The institution is over 5,000 years old and is the means by which children are prepared for adulthood in the wider society--that is fact, not speculation. Tolerance for same-sex relationships does not require the fundamental redefinition of that institution.

3) The fact that religious belief is not epistemically irresponsible means that it is a legitimate basis for discourse and premise for political argument, as it has been historically, from Wilberforce's campaign to end slavery in Britain to King's campaign to end segregation in the United States.

 
At 1:14 PM, February 13, 2005, Blogger cocodrylo said...

This comment has been removed by a blog administrator.

 
At 1:18 PM, February 13, 2005, Blogger cocodrylo said...

To Joshua Duncan:

Although allowing Gay Marriage may change the "foundations of society", it is not at all clear how this is different from cases such as the Civil War, Civil Rights, ending Prohibition, or Women's Rights in general. In all of these instances, we have non-secular (perhaps even irrational, non-religious beliefs as well) beliefs that intend to deny certain individual rights.

To Johnny-Dee:

You said: Why is a secular reason supposed to be the common ground to which everyone can appeal?

Audi takes this to be a Corollary of the First Ammendment to the constitution, I believe.

When an overwhelming majority of a nation do not have a strictly secular outlook, using this principle will hardly reflect the will of the people.

The reason why we have a constitution is to have several limitations in place to protect the minority. One of the problems with Democracy is that the majority rules, and that the minority can be easily oppressed. Our founding fathers put limitations in to protect these people, and it seems that this is something we should try to protect, even if we do not endorse the behavior of other individuals.
Notice I am not making a "founding fathers" argument. I hate those. I am simply saying that it seems that we, as a nation propounding freedom, should never let non-secular reasons be the motivation put forward for our restriction of legal protection, or social benefit.

To Anonymous:

You said: This principle appears to be an attempt to simply define out of existence the arguments of people of faith

No, it is not intended to do such a thing. It is simply intended to define out of existence the arguments of people of faith that only rely on their religious reasons for doing so. I'm fairly sure that this is what you meant, but I think it needs to be said. A religious person can put forward secular arguments, and we would not reject those because they have a religious belief. Furthermore, the intention of "defining out of existence" is precisely to protect the minority in a free society.

Although there may be good philosophical reasons for believing in a soul, it does not seem that those arguments also prove certain moral (and perhaps coverty christian) principles. I would have to say that you seem to be committig a red herring at this point.

Anonymous (different):

If only "secular" arguments were allowed in the political arena, then the foundational documents of our nation would have been out of bounds--we "are endowed by our Creator with certain inalienable rights."

Although this may in particular seem religious, I don't think it forces one to endorse any specific religion (Jefferson is not typically considered a "model Christian") However, I can concede that this may be religious, and reject it. Yes, our founding fathers do make mistakes - but how does this principle sound as a foundation for a free society: "we ought not deny anyone life, liberty, or the pursuit of happiness." That doesn't seem like a bad start, and has no religious connotations.

Similarly, the civil rights movement of the 1950s was led by Christians (e.g., the Rev. MLK, Jr.) who argued that all people should be respected because they are made in the image of God

I also believe that King said that we should judge a [person] by the content of their character, not the color of their skin. No religious reference here. Furthermore, King was speaking to an audience considered to be Christian. So you might interpret him as saying, "if you want to be a good Christian, then you should endorse civil rights." Okay. Atheists would be immune to this, but they can have their own secular reasons for endorsing civil rights.

Another Anonymous:

You said: Sexual preference is not equivalent to race, since it is determined by the behavior of the individual, and regardless, preservation of the foundational institution of society--traditional marriage--would provide government a compelling interest for denying marriage to same-sex partners.

Given my legal purpose of marriage argument, I think that this is totally irrelevant. Why do we protect certain members of a marriage? Because, as I said before, there are opportunity costs that we risk if we enter into a marriage, or any other sort of relationship with a similar function. If we offer protection to people based on the type of relationship with such a function (namely, only heterosexual arrangements), we are being unfair to others - that is, treating them unequally.

Regardless of tradition, the interests of equal rights and freedom override all "traditional" institutions. Slavery is an example which (notice how I do not refer to race) we are denying people freedom and equal rights. So, although slavery was a traditional institution (and even stronger, an important economic institution - and hence, a non-secular reason), we had to forgo such an institution to fulfill stronger governmental obligations.

You said: The institution is over 5,000 years old and is the means by which children are prepared for adulthood in the wider society--that is fact, not speculation. Tolerance for same-sex relationships does not require the fundamental redefinition of that institution.

Same sex relationships have not been the only type for the last 5,000 years. Polygamy (including Polygyny and Polyandry) and homosexuality have been tolerated in the last 5,000 years. Furthermore, as I said before, sometimes even the strongest institutions must be given up in the name of equal rights and freedom.

 
At 3:10 PM, March 01, 2005, Anonymous Conchis said...

I am very interested in Bush's argument. I take him to be saying:

- After experimenting with non-traditional life styles, I (and many of my generation) have decided to be traditionalists. You should be too.

- As a traditionalist, I feel government should not undermine the values of traditionalists.

- One of the values held by traditionalists is that the word marriage should be defined as heterosexual only.

- Therefore government agents ("activist judges") should not redefine the word marriage to allow its application to homosexuals.

Several points:

- This is not really an argument about laws. It is (on the face of it) an argument about the meaning of words. Perhaps this is an attempt to deceive -- it seems to me that the real goal must be to limit legal rights. (How would they limit legal rights in practice?) The argument sounds odd in a political context. At the very least it avoids discussing the political and social issues associated with legal marriage.

- I am a practicing Buddhist: I attend sangha meetings regularly and meditate several time a week. I have serious differences with "traditionalism" when it is defined as white, southern, evangelical Christianity. Should I be subject to rules tailored to avoid offending evangelicals' values? How are policies to be resolved when my values and those of evangelical christian values conflict?

- And so here is where the secular reasons come in. Any argument that respects my rights to engage in public discourse (and accept or reject proposed claims) must be framed in language that is meaningful to me. Bush did not attempt to frame the question in terms that extend beyond his own particular group. If he looses the debate, fine, we can only say that he was not inclusive. If we wins then this is an example of "might makes right" instead of governing with the consent of the governed. Because the argument was never posed in language that is meaningful to me I was never given the opportunity to give or withhold my consent.

 
At 11:01 AM, March 02, 2005, Anonymous Anonymous said...

The above post distorts Bush's argument. His defense of traditionalism is an inductive case that rests on millenia of experience.

1) It is not an argument about the "meaning of words": when a judge "re-defines" a practice, it has real-world legal impact, not just a semantic impact (e.g., when fetuses were "re-defined" as nonpersons by Roe v. Wade).

2) Yes, in democracy, we are often "subject to rules tailored to avoid offending" the values of the majority. For example, white supremacists are subject to laws prohibiting racial discrimination in housing and employment, no matter how "offensive" they find such laws, and regardless of the fact that such laws sprang from a civil rights movement with a judeo-christian worldview.

3) There is nothing in Bush's argument that is not "meaningful" to those "outside his particular group": indeed, that is why his argument can be vigorously opposed. The attempt to rule out arguments premised on a judeo-christian worldview ab initio is a stunning example of chutzpah.

 
At 3:03 PM, March 09, 2005, Blogger cocodrylo said...

To Anonymous:

Regarding point 1)

A judge may appropriately "re-define" a practice if such a practice is discriminatory. If we were to say that blacks only count as 3/5ths of a person, I think a redefinition would be in order. Likewise, a similar case follows for gay marriage. We are denying people certain legal rights when such people enter into relationships of a similar function to marriage. See my legal argument in which I argue that in cases where anyone engages in an opportunity cost with the same structure (long term explicit relationship in which various resources are shared and both parties make strong concessions in the interest of the other) and same potential consequences, denying one party rights based on religious views of how that structure should be ordered is unjust.

Regarding point 2)

In a pure democracy, we would be subject to rules tailored to avoid offending the majority. But we do not live in a pure democracy. We have a constitution which strictly limits the ability of the majority to will to law whatever it feels it wants to do. As for your white supremacist example, they have the right to say and believe what they want; but in the interests of non-discrimination, their actions cannot be such that they infringe on the rights of others.

Furthermore, regardless of how such laws against discrimination sprang up (you claim they sprang up from a civil rights movement with a judeo-christian worldview), the civil rights is not supported by strictly people with a judeo-christian worldview. Moreover, the justification for civil rights need not be based on religious worldviews; such justification can come from secular worldviews as well. And such laws are justified if they have secular justification.

In addition, these people with a judeo-christian worldview who are adamantly opposed to discrimination, if they continue to religiously base their justifications, might end up supporting discriminatory laws because the people protected by such laws do not fit in line with a judeo-christian worldview. Would such people prohibit Hindus from worshipping multiple gods? This is against a judeo-christian worldview as well.

On point 3)

The ruling out laws premised on judeo-christian ethics ab initio is precisely what we would expect if we support the right for people to practice their own religion. Of course, this is restricted if religious practice violates laws (note that we don't allow human sacrifice - although we have made concessions regarding drug use).

 
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