Friday, December 24, 2010

Make It Complicated

A paper by Robert George, Sherif Girgis, and Ryan Anderson (H/T) seeking to defend the moral propriety of restricting marriage to heterosexuals, is making the rounds in right-ward circles.

I don't think it's particularly impressive. For a piece that purports to provide a positive case for the intrinsically heterosexist quality of marriage, its positive case is remarkably thin -- solely occurring in Part I.B, pp. 252-259, and effectively only in Part I.B.1, pp. 253-255. That argument, claiming that only generative sex can provide a truly comprehensive "bodily union", seems to be a recycled and cross-applied version of the arguments John Finnis made to argue that homosexual sex was intrinsically immoral -- an argument that I think was definitively shredded by Catholic legal scholar Michael Perry over a decade ago.* (The other two arguments contained in Part I.B are scarcely worth mentioning. George's claims in I.B.2 regarding the intrinsic superiority of heterosexual marriage over gay marriage as an environment for rearing children are on the margins of the relevant literature in the field. And I.B.3 is a less-than-one-page blip that tosses out some disconnected rhetoric on "marriage norms" that, by the author's own admission, are dependent on accepting the points made previously in the section.).

Returning to the Perry/Finnis discourse, it's notable, I think, how this debate does seem to be reprising similar ones over whether the state can morally proscribe homosexual conduct -- a debate that raged hot and heavy until approximately 9 months after Lawrence v. Texas. Once that case came down and the requisite fulmination about "activist judges" had subsided, the moral case for outlawing sodomy effectively died -- virtually nobody, not even virulent gay rights opponents, is willing to admit they want to recriminalize sodomy in the United States.

However, I don't think the function of George's argument is to persuade. That isn't to say that he doesn't believe what he wrote, or that many others don't agree with him. But I highly doubt that there is anybody who started sympathetic to marriage equality, who will be remotely convinced by George's argument.

The function of George's argument, in conservative circles, is to restore the question's status as one of reasonable disagreement. A considerable chunk of the conservative movement, privately, has no problem with gay rights. They may oppose gay marriage as a matter of political expedience, but once it becomes reality (and it will, slowly, fitfully, but inexorably), they don't expect the sky to fall. It is a closer cousin to sodomy than abortion in this respect -- once the battle is won, the issue will die. And they know this. They know where the nation is headed. They can't expect this to be a live issue in 50 years.

These people know they're on the wrong side of history. And yet, they still have to sleep at night, knowing who they've crawled into bed with (so to speak). And that's where Professor George comes in. He makes this issue look like something complicated -- a question upon which it is reasonable to expect some folks to be mistaken. There is no shame in being wrong about such an issue, after all. We expect a considerable chunk of the population to get hard questions wrong. It's not a moral failing. And consequently, there is no moral failing in allying with such people. It'd be akin to disowning an early 20th century scientist for initially doubting Einstein.

Of course, the issue really isn't that complicated. Professor George's argument is, as one commenter put it, "trying, desperately, to find some way, any way to overcome the naturalistic fallacy ... and of course, failing." There is a lot of totemic hand-waving towards this idea of "bodily union", but it is an argument which lies on a precariously thin reed of "biological compatibility" -- a naturalistic fallacy if there ever was one, and the style of argument that, as noted, Perry had long-since dismantled.

To my conservative friends who think that George's article will give them cover for their dalliances with the merchants of discrimination -- will shield them from the harsh judgment of history's gaze -- know this: it won't. This issue will not be seen as one of reasonable disagreement whose ultimate answer was, by the year 2010, still in doubt. This issue will be seen as the premier civil rights challenge of our times. And the enablers of the old, discriminatory ethos will be found guilty. Mark my words on that.

* Michael J. Perry, The Morality of Homosexual Conduct: A Response to John Finnis, 9 Notre Dame J. L. Ethics & Pub. Pol'y 41 (1995).

UPDATE: Vice President Joe Biden just said it is "inevitable" our nation will eventually reach a consensus in favor of gay marriage, and, following DADT repeal, mentioned DOMA as the likely next piece of the anti-gay agenda to fall. An interesting statement, given that then-Senator Biden was among the "yea" votes for the Defense of Marriage Act when it originally passed in 1996.


joe said...

Quite the speech, but future-conservatives (just like future-everybody else) will have a much easier out than some sort of strategic six-dimensional SSRN chess theoretically prepared in anticipation of losing.

Let's call it pulling a Buckley.

The strategy is simply one of owning up to having been wrong, but (eventually, that is - perhaps in year 45 out of the next) dismissing the notion that fact may be indicative of any deeper flaws in one's ideology or worldview. "Aw nuts, we got it right eventually, didn't we? Why are you living in the past holding it against us? The pane has been reinforced, so now our glass house is unassailable!"

PG said...

Joe is probably right, though I'd add the demurral that just as it's entirely respectable on the intellectual right to attack the *reasoning* of Brown, it will remain entirely respectable to attack the notion of a Constitutional right to SSM (or to sodomy, for that matter), without saying that one opposes SSM as a matter that can be legislated, preferably by referendum. (Why SSM should only be achievable by referendum, but the continuation of, say, the Bush tax cuts for the wealthy oughtn't follow mere popular opinion, is an enduring mystery.)

virtually nobody, not even virulent gay rights opponents, is willing to admit they want to recriminalize sodomy in the United States.

Indeed, for the component of the argument that says we can't compare same-sex marriage litigation to Loving v. Virginia, it's absolutely necessary that sodomy remain legal, because one of the dissimilarities is that Loving was prosecuted for fornication and miscegenation by the Commonwealth. Because his marriage wasn't recognized, he was in the same position as two people living out of wedlock.

N. Friedman said...

I have real problems with your argument, David.

Objection to non-heterosexual marriage is long standing. We have no way, since we are dealing with something fairly unprecedented, the impact on our society. I tend to think it will be for the better of all involved, gays and straights. But, that, at this point, is just a guess.

And, the direction of history is something that interested Hegelians and Marxists and their followers. But, anyone who has read Nietzsche or followed 20th Century analytical philosophy knows that there is no such thing as history having a direction. That is, in essence, a religious argument.

As for the caliber of George, Girgis and Anderson's argument, they are playing the same game as you. A bad end can be predicted, on their thesis. The skies will fall, etc., etc. Again, we cannot know such things with any assurance.

What we can know is that, traditionally, societies privileged marriage as being between man and woman, not man and man and not woman and woman. There have, however, been experiments at least in ancient times but, even there, marriage was between man and woman - while the "important" relationship was between man and man, as we find, for example, in Plato's writings, among others.

We also know that the marriage thing, in its traditional form, is not limited to the parts of the world influenced by Judaism. Which is to say, Indian and Chinese civilization also privileged marriage between man and woman. So, presumably, marriage in the traditional sense has fulfilled a felt need.

My best guess - and that is what is really possible here - is that liberal society is in serious decline but that probably has nothing to do with whether marriage is between man and woman. It has everything to do with the moral collapse that accompanied WWI and which culminated in the complete break down of civilization in WWII, with people despairing of Western civilization.

Anonymous said...

The overweening sexual Fukuyamaism is a bit hard to stomach. It's wise to regard civilizational developments as fragile and reversible.

joe said...

Sexual Fukuyamaism, that's is a good one. And I must ask what the deal is with the fixation on the fifty year mark as a barometer for our culture war moral judgments. (Not that I accept that there exists such a harshly definitive Judgment of History in any case. Fifty years after Brown, William Rehnquist was still a respected man. Justice Scalia has even gotten away with suggesting he still thinks it was dead wrong on the law.) Why not a hundred? Why not five hundred? How might the majority of us fare in the eyes of our hypothetically vegan descendants.

Some might say not very well, but then again you'd think Thomas Jefferson would have a little harder time of it holding the mantle of a Great Man, what with the slavery and all. (And rape, for that matter, since I'm pretty sure any modern feminist construction of consent depends on neither party literally owning the other.)

troll_dc2 said...

I have never understood the either/or nature of the debate. What is wrong with having both traditional marriage for those who want it and same-sex marriage for those who want it? I am not sure whether there really is a constitutional right to same-sex marriage (even though I myself am gay), but I see no good reason why a legislature should not be able to authorize it.

PG said...


In the eyes of SSM opponents, there is no way to maintain "traditional marriage" if same-sex marriage exists, just as abortion prohibitionists believe there is no way to maintain "sacredness of life" if abortion is legal. Obviously people can continue having opposite-sex marriages when SSM is legal, just as people can still have babies when abortion is legal, but what the opponents of each liberty find crucial will have been lost. Or to use the standard analogy: the principle of all people being free and equal cannot coexist with enslavement, even if most people don't own slaves.

It will be fascinating to see if fewer people do get opposite-sex married once SSM is universally accepted. To the extent that marriage, for many people, is still about playing out essentialist gender roles, they're actually right that SSM poses a fundamental threat to their conception of marriage. Of course, for those of us who are appreciating how marriage has historically (and not just over the last 50 years) been moving away from that, SSM is a welcome part of the larger shift.

As for what societies have traditionally privileged, *many* of them -- including pre-revolution China and Muslim India -- have privileged polygamy, specifically in the form of men having multiple wives. A much smaller subset of societies -- again, including India, which is why I find making a generalist statement about "Indian civilization" a bit silly (some parts of India have had a social role for a "third gender" long before the Western trans movement got going) -- have privileged polygamy in which women have multiple husbands. All these societies have been responding to the exigencies of their times and sometimes continuing to privilege these forms of marriage past their real usefulness. In 21st century America, marriage has a legal and social significance far beyond the production of offspring.

troll_dc2 said...

PG, thanks for your response.

I am skeptical about the value of living by analogy; even if it is somehow true that one cannot be truly free when others are enslaved (Passover, anyone?), it is hard to see a connection between one person's marriage and that of another person. I wonder whether anyone has done research on the extent to which SSM opponents believe in (and favor a return to the practice of) traditional gender norms.

Massachusetts has had SSM for some time now. Are there yet studies about its effects on traditional marriage?

N. Friedman said...

PG writes: "All these societies have been responding to the exigencies of their times and sometimes continuing to privilege these forms of marriage past their real usefulness."

The evidence for the exigencies theory is what, exactly? It is, so far as I can discern, akin to the theory that Kosher laws (e.g. not to eat shell fish) arose in order to protect against food born illness. So, I would love to know the facts comprising the exigencies for your views.

As for traditional marriage, there are certainly exigencies that support it.

PG said...

So, I would love to know the facts comprising the exigencies for your views.

One with which I would have thought you'd be familiar: the permission for polygyny in Islam due to a shortage of men, because of combat deaths and other high mortality for men of marriageable age that left many widows and fatherless children.

"If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four..." (Quran 4:3).

The article I linked explained the original reasons for polyandry in some Indian communities, as well as why it is now dying out. You might try reading the provided links when replying to a comment. Certainly it's a lot less to expect in a discussion than when you tell people to read entire books that aren't available as online texts.

As for traditional marriage, there are certainly exigencies that support it

What are the exigencies in 21st century America that support limiting marriage to opposite sex couples, though the members of those couples may be of any condition with regard to fertility, age past adulthood, race, income, criminal background, etc.?

PG said...

The Koran specifically states the exigency that makes polygyny permissible: the problem of unmarried women, widows and orphans during times of war and other high mortality for males.

If one reads the links I provided, one will see the polyandry in parts of India was due to particular circumstances that no longer exist to the same extent, and thus the polyandry is dying out as well.

What exigencies exist in 21st century America that support limiting government recognition of relationships only to those between two people of the opposite sex? I certainly can think of many exigencies that support extending recognition to same-sex relationships, the most obvious being that those relationships *exist* and often include child-rearing.