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.
posted by Anonymous @ 11:16 AM
15 comments
15 Comments:
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.
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.
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?
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).
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.
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.
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.
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.
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.
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.
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.
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