Gay Marriage and the Right to Marry

By Mark T. Mitchell for FRONT PORCH REPUBLIC

Hidden Spring Lane. The topic of gay marriage is difficult to avoid these days, even for those who would try. Defending “traditional marriage” is seen by many as either a hopelessly outdated enterprise pursued only by the naïve or a malicious attempt by one group to restrict the freedoms of another. Who wants to appear naïve or malicious?

As in all controversial issues, some arguments are better than others, and at the very least, understanding both sides of the debate should include distinguishing the good arguments from the bad.

I was recently involved in a discussion that included a person insisting on two claims: 1) moral “values” are subjective and therefore what one person believes to be morally right can in no way bind those who disagree with those particular values, and 2) that gay marriage should be legalized, for to restrict marriage between any two consenting adults would be a grave violation of their rights.

While the earnestness of this person is not to be doubted, his philosophical acumen was less than stellar, for it seems that to hold both of the above claims is poor philosophy at best and perhaps even self-defeating. Here’s why. To assert that moral claims are merely subjective preferences is to undermine the strength of one’s own moral claims. If moral beliefs are merely subjective preferences, then the person making the moral claim (that gay marriage should be legalized) is making a claim merely about his own subjective preference (akin to I prefer chocolate to vanilla). But if that is the status of moral claims, then on what grounds does such a person insist that others are morally deficient for holding an opposing view? The adamancy with which the claim is made suggests a moral impulse that is rooted in something other than mere subjective preference, yet that possibility is precluded by his initial commitment to moral subjectivism.

There are, as I see it, only two possible alternatives. First, one can simply admit that, yes, moral claims are merely subjective preferences and that, nevertheless, gay marriage should be universally embraced. The first clause undermines the strength of the second; although, one could imagine a person simply shrugging his shoulders and insisting all the more. But the rejoinder to such an argument is obvious: why should I agree with you? If the answer is some form of “because I insist that you agree with me,” then we must admit that the argument is merely an emotional appeal devoid of reason. Such an argument in the end becomes nothing more than a power play wherein one person or group attempts to compel another person or group to conform to merely emotional assertions. The Nietzschean overtones are difficult to miss.

The second alternative emerges when a person realizes that the strength of the gay marriage claim rests on a moral claim, for if a person insists that “it is right that gay marriage be legalized,” and if he means that this notion of “right” is a fact that others should affirm, then the moral genie has been released and we have to abandon moral subjectivism. But then we are, at the very least, in a position where we can now make arguments that can be evaluated on their rational merits rather than simply on their emotional appeal.

So, the strength of the gay marriage argument depends on jettisoning moral subjectivism. Where does that leave us? There are several competing moral theories, but the current language justifying gay marriage tends to turn on some version of human rights. The language is familiar to our ears: all humans possess certain rights and among these are the right to life and liberty. A right to freedom would seem to imply that people are free to associate as they please as long as their actions do not infringe on the rights of others. But this line of argument merely forces us to ask “what is a right?” and “what kind of creatures are human beings that they should possess rights?” One cannot conjure rights out of thin air, so we must justify the claim.

  • Perhaps humans are rational animals; therefore, they have rights. But why would rationality confer a special moral status on beings who possess it?
  • Perhaps rights are merely what the majority says they are. But that seems to retreat from the moral claim about rights and returns them to the realm of subjective preferences. Why should we think that the majority is necessarily correct? Is there no appeal beyond the desire of the majority? If not, how can we claim that any decision of a majority is unjust? Might, it would seem, makes right.
  • Perhaps human beings possess inherent dignity, and rights are merely a way of formally expressing that dignity. But this claim simply leads to us to ask, “what is this dignity, and how is it inherent?” One does not possess inherent dignity by wishing it to be so. Perhaps there are theological arguments to justify this claim, but that in itself complicates matters significantly.
  • Perhaps humans are capable of thinking and acting in moral categories; therefore they have rights. But while thinking in moral terms might be sufficient to imagine that I possess a moral right, why is it sufficient to actually create a right?
  • Perhaps humans are capable of planning for the future and we use rights language to express our desire that our future plans are not thwarted. But the fact that we can plan for the future and want our plans to be realized does not explain why anyone has a moral duty to respect those desires in others.
  • Perhaps the fact that I have a desire to be treated in a certain way (with respect, fairness, etc.) provides, by a principle of reciprocity, a way to justify the same respect for others. But why should I not simply seek to exploit others, at least as long as they think I am treating them fairly? Where is the moral duty to treat others as I want to be treated?

The language of rights, so ubiquitous in our political discourse, does not appear to justify moral claims without rooting the idea in something more than a mere claim to the rights–such claims appear to be little more than subjective preferences. While today we speak of human rights, rights in an earlier idiom were referred to as natural rights: rights are something that humans possess by nature. But the language of nature is philosophically laden, for if rights are rooted in the nature of things, then we are forced to concede that nature, generally, and human nature, specifically, is morally structured. And a morally structured nature implies that there are moral norms to which humans are obligated to conform. Of course, the fact that we are free creatures implies that we can refuse to conform our actions to the standards of nature, but that does not imply that moral norms do not exist or that violating those norms is without individual and cultural consequences.

If gay marriage is defended as a matter of rights, we must admit that a) these rights claims are merely the expressions of the subjective preference of a particular group, and we are back to the problem of mere emotional claims, or b) we will very likely need to ground the rights claim in some notion of nature (or even theology) and all that a morally laden conception of nature (or a God) implies. And if nature is, as it would seem, tied to fertility, it may be difficult to derive a right to gay marriage from nature. At the same time, one can justify the equal treatment of all people, regardless of sex or race, on the basis that we all share a common human nature. If rights are rooted in nature, then we can champion the moral equality of all humans even as we admit that marriage, itself, seems limited by its very nature. There is, of course, a third option: derive a moral justification for gay marriage that does not recur to the language of rights. What that looks like, in terms of the public discussion, remains to be seen.

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