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 Defending “traditional marriage” is seen by many as either a hopelessly outdated enterprise pursued only by the naïve or a malicious attempt by one group to restrict the freedoms of another.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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  1. Interesting thoughts, Mark. I am a philosophical novice and merely thinking through what I’ve read above, which leads me to a question. What if it’s not an issue of rights but of, say, fairness? I’m not looking to antagonize. But what if there is no “right to marry” but only the institution of marriage, which happens to exist in a certain society in certain ways (in America, it is conferred by government with a marriage certificate, I think), and people must meet certain criteria to participate in the institution (like, say, a public high school? I don’t know, just thinking out loud).

    Then, it seems that advocates for gay marriage would simply be saying that the criteria should be changed from one man + one woman, to any two consenting adults. I’m guessing their argument would be fairness.

    Maybe there’s not really a philosophical difference here. If so, forgive me for being like that anonymous person above who is earnest but not stellar!

  2. This is excellent and important. I often notice the conflicting pair of claims you point to from those who push for gay marriage. Almost all arguments that I hear for gay marriage are quite incoherent. And in fact, they’re rarely ever arguments at all. It’s more like, gays should be allowed to marry. And if you disagree, you’re a bigot! End of conversation. Then again, with our culture of discourse, we’re not going to get very far with coherent arguments anyway.

    Because marriage isn’t about rights, it’s also not about “equality.” Unless of course, we’re talking about getting money from the government, but then again I don’t care very much about that anyway, and I certainly don’t consider it “marriage.”

    But if we are talking about the enjoining of a man and woman and are concerned that this definition excludes, i.e. it leads to inequality, we’re failing to recognize that there are several other “limits” placed on marriage already, and ones that even go beyond the “consenting adults” mantra. Polygamy, for example, or incestuous relationships could potentially be consenting, but that doesn’t mean these “couples” should marry.

    Or what about this “adult” construct? Who came up with that? Without Someone or Something speaking these laws into being, why should 14-year olds not be able to marry? That’s not very “equal!” I don’t see very many gay-marriage advocates, who claim to be pursuing equality, who are very interested in those scenarios. Why? Well, of course, because they think their claim is morally justified, while the others aren’t. It’s not about equality at all. So it’s a little comical that both gay and traditional-marriage people are starting with the idea that their form is morally just. The difference is that traditional-marriage people acknowledge and admit that they start with a moral claim because they didn’t have to deconstruct the idea of universal morality in order to get to where they are. Quite the gridlock! But sadly, I think we all know the direction this is going, and we’re never going back. This is “progress,” after all.

  3. Re: Occasional Reader

    Advocates for same-sex marriage do make that very argument. The appeal to “fairness” though, boils down to a particular right – the equal protection of the laws. That right can be invoked without, as Dr. Mitchell notes here, “as a mere claim to the right”, though, because it is constitutionally enumerated.

    The problem, though, is that the denial of equal protection must occur in pursuit of a legitimate state interest. Typically, the Supreme Court frowns upon the claim that moral conviction alone supplies such an interest, but the question in the marriage case arises: what happens when both sides are making essentially moral arguments. Even the argument about equal protection contains a moral premise – that marriage ought not extend to same-sex couples or (in your words) that it “should be changed” for the sake of fairness. Since this is a battle, not about the extent of a benefit, but about the very definition of the benefit, moral reasoning is required to determine whether the existing definition is right or wrong.

    For this reason, the moral analysis presented by Dr. Mitchell here is very important. Amici curiae are making similar arguments in the Supreme Court – I pray that the Court will listen.

  4. Bravo, Mr. Mitchell! I hear crickets chirping as “gay marriage” advocates respond to your challenge to formulate a moral justification for same-sex marriage that doesn’t in the end default to talk about rights.

  5. This is a very interesting post! Thank you for unpacking the philosophical underpinning and calling for a more coherent argumentative grounding.

    Like my sister, I have no problem with gays getting married. If a gay man wants to join his life with a woman’s (and, hopefully, thinks he is attracted to her enough to procreate), more power to him.

  6. And moral subjectivism in and of itself presupposes a claim of right and wrong. If it’s morally subjective to me that moral subjectivism is bunk, who are you to tell me I’m wrong? By what basis? I read of a billboard in a college town once that read, “It’s okay to know you are right but not okay to think others are wrong.” That’s an interesting moral standard…. 🙂

  7. MM: And if nature is, as it would seem, tied to fertility, it may be difficult to derive a right to gay marriage from nature.

    Does the question of rights apply both ways? Some people now have the “right” to be married. By what right[s] can heterosexuals be married? Does one have to provide a reason why that “right” should be denied to others? Does the fact that fertility is not tied to marriage mean anything? Certainly one can procreate outside of marriage. Does the fact that heterosexuals are allowed to be married when they do not have to pass a fertility test nor agree that they will be fertile mean anything? What about the fact that gay couples can have children? How is that factored in to the discussion?

  8. Stephen,

    I hear crickets chirping as “gay marriage” advocates respond to your challenge to formulate a moral justification for same-sex marriage that doesn’t in the end default to talk about rights.

    I’m sure I’m not alone in having changed my mind about same-sex marriage in recent years, and I don’t think I’ve done so on the basis of some sort of rights-based arguments. Indeed, it’s exactly because I don’t really think “rights” are a good way to think about marriage that I’m frustrated by this court case which will come before the Supreme Court this March. But I think there’s a solid argument for it, on the basis of respect for interpersonal affection and its place in the construction of loving communities. Granted that same-sex unions cannot be intergenerational in the way which the ideal form of heterosexual marriage presumably ratifies, but locking the legal ratification of relationships into a nature-bound definition of intergenerationality and fertility seems to me to lean very, very hard on an essentially inequalitarian model of male-female relationships…and there came a point where I, mainly as a result of my experiences as a father of multiple daughters, just couldn’t agree with what I saw as sexual inegalitarianism any longer. And hence, my resistance to same-sex marriage fell apart.

    Anyway, for what it’s worth, here are two pieces I wrote on my mind-change. They’re rather Mormon-centric, because of course much of this involves an internal conversation with one’s own religious tradition, but maybe some will find the arguments interesting nonetheless.

  9. Very good discussion, to which I want to add an observation and a suggestion.

    I attend a Quaker meeting that has been formally recognizing the unions of same-sex couples as marriages for decades and so states on a banner strung across the front of the meeting house. I remain a member of another meeting that has done the same (except for the banner, since it lacks a meeting house) since 1989. I have heard of many Christian congregations that also solemnize same-sex marriages as marriages. Not once has any advocate for same-sex marriage ever pronounced in my hearing or to my knowledge any intention of devaluing or in any way changing the status of “traditional”, opposite-sex marriage. Those who loudly bray that same-sex marriage undermines or even destroys traditional marriage seem to be screaming “Fire!” in the middle of the ocean.

    If we want to argue for same-sex marriage as a matter of rights–and I think I do–then I suggest that what is involved in legalizing same-sex marriage are civil rights–more than a thousand of them in federal and state law, I’ve been told. Civil rights are privileges conferred by means of political dialogue–the right to vote, the right to bear arms, the right to legal counsel when on trial, etc. They don’t necessarily correspond to natural rights or human rights as those are variously defined by different philosophical traditions–nor, in a secular polity such as those of the U.S. and its states, should they.

  10. Russell,
    I quick read the first piece of yours (not both, for, frankly, I am supposed to be grading essays and this is my way of avoiding them). You argument is unpersuasive. Let me quote Tocqueville:
    “There are people in Europe who, confounding together the different characteristics of the sexes, would make man and woman into beings not only equal but alike. They would give to both the same functions, impose on both the same duties, and grant to both the same rights; they would mix them in all things–their occupations, their pleasures, their business. It may readily be con- ceived that by thus attempting to make one sex equal to the other, both are degraded, and from so preposterous a medley of the works of nature nothing could ever result but weak men and dis- orderly women.”

    The fact that male and female are different and the law recognizing that does not imply inequality. I am here mostly commenting on the line “support of traditional marriage meant accepting sexual inegalitarianism.” God did create man and woman. Why not just create an asexual being? There in the natural of the creature is difference. But, as I say, I don’t see where that means inequality.

    One more point, not necessarily related to the above. It seems to be same-sex marriage advocates really are just simply trying to redefine the thing. They don’t really want “marriage” because the definition of the thing says “marriage is a man and a woman.” It’s like asking for a bird that has no feathers (this I take from that very scientific children’s book “What Makes a Bird A Bird). If it has no feathers (please, no jokes about hope) then it isn’t a bird. This point is further buttressed by the fact that the earliest proponents for SSM were quite open (and still are, sometimes) in saying that the whole point of the movement was to destroy marriage. It is about extending sexual license, not “rights” of any kind.

  11. Mr S.–You write that it is “the fact that the earliest proponents for SSM were quite open (and still are, sometimes) in saying that the whole point of the movement was to destroy marriage.” I believe that this is not “the fact”. The argument by leftist radicals was the old one against marriage that harks back to the eighteenth century. Such advocates, if we can call them that, of SSM were merely flouting the bourgeoisie, not making a serious proposal.

    You also day that SSM “is about extending sexual license, not ‘rights’ of any kind.” In this, you are flat-out wrong. Just ask SSM supporters–of whom I know dozens and have read or heard dozens more over the course of a quarter of a century.

  12. I don’t believe we can ground a right to SSM in nature–not because SSM is incompatible with nature, but because “nature” is vulnerable to the same subjectivity as emotional preferences. “Nature” as we understand it is necessarily our own interpretation of it. A century ago, what was considered “natural” forbade interracial marriage; today this is no longer so. Our interpretation of nature has shifted, and with it any moral arguments anchored to that interpretation. A rights-based morality tied to a necessarily subjective interpretation of nature, therefore, is just as subjective. We could argue just as easily in favor of basic preservation of one’s genes, as fertility, as a moral basis in favor of SSM; a gay aunt or uncle, having no children of their own, may dote greater resources on a niece or nephew, thereby bettering the chances of preservation of a somewhat smaller fraction of their genetic heritage. Perhaps the discourse will simply come back to our basic sense of fairness, freedom, and responsibility. If two adults, of whatever sex, freely choose to bear the consequences of a life-long committed relationship with one another, then it is not for society–i.e., the state–to deny them the benefits, nor relieve or protect them from the costs, of that relationship.

  13. Is it permissible to have a word that describes a relationship which at its core involves a mother and a father coming together for procreation of and subsequent raising of children? If the word “marriage” no longer describes that particular relationship, are we at liberty to create another word to describe that relationship? Or will the same-sex advocates insist on applying that new word to themselves as well?

  14. The above post suggests that the burden is on gay couples to prove that they are entitled to marriage licenses. This is legally incorrect. Once the state decides to get into the business of giving out marriage licenses, the burden is on the state to prove that certain couples are not entitled to marriage licenses.

    I agree that your friend’s philosophical reasoning is flawed. I’ll try to restate what he’s probably trying to state. Moral principles can be classified broadly into two categories: (1) those that can be justified with reference to the natural world, i.e., without necessarily making substantial reference to religious dogma; and (2) those that cannot readily be justified with reference to the natural world, and which therefore flow from religious dogma.

    I think we can all agree that the state is justified in relying on moral principles of the first category in making laws. Thus, we have laws against murder, theft, arson, etc. On the other hand, we generally agree that the state has no business making laws that rely on moral principles from the second category. Thus, we don’t have laws that force people to go to church, to abstain from pork, etc.

    I think your friend is trying to say that prohibitions against same-sex marriage fall into the second category, i.e., as something that is justified almost entirely based on religious dogma. Back in the days when we believed that homosexuality was some form of mental illness, there were solid non-religious reasons for the state’s refusal to sanction same-sex unions. Those days are no more. Therefore, the state’s exercise of authority in this area can no longer be justified.

    What’s changed? Our understanding of homosexuality has changed. The opposition to homosexuality today is almost entirely rooted in religious dogma.

  15. I have a different view here. I see same-sex marriage as a simply crazy place to make a last stand. Same-sex marriage is neither the most interesting or most important battle in trying to restore strong families. The problem has to do with the evolution of traditional marriage and the way our government programs in many ways deeply moves against them.

    But before I go into it let me pose a thought experiment. Suppose two close friends, both male and in their fourties find themselves widowed through some tragic accident and are tasked with taking care of their kids. Suppose further for the sake of economy of scale, they two good friends end up jointly raising their kids. Sex is not in the picture. They share a house and means of transportation, jointly buy food and pay bills together. There is no need for further procreation. What is the pro-family position regarding the legal stability of such a de facto household? I ask because I think there are cases where many of the arguments against SSM end up being difficult to maintain. Certainly in such a case, the *children* have a right to the stability that marriage would provide, correct? And is there anything wrong with such a household? If not then one gets into the question of the rights of children in de facto same-sex households today and that is an issue that neither the left nor right wants to talk about (the right because this would be a pro-SSM position, and the left because it undermines their narrative of the issue).

    SSM is only an issue today because it is an economic luxury bought at the expense of families to begin with. Programs like social security and the ideal of an independent retirement essentially have obscured and depersonalized the link between procreation and support as one ages. Traditional marriage is cheap, SSM is expensive, and the cost is paid in all the programs that support a declining birth rate, an increasing out-of-wedlock birth rate, and our social acceptance of telling old people to go off by themselves so as not to be a burden. Same-sex marriage *necessarily follows* from such programs and to oppose SSM without trying to recover the strength of the family, now eroded by so many government programs, is lunacy.

    For the record, I am not opposed to government recognition of same-sex marriage, provided that it is a matter of government being neutral on this culture war issue. I would further quite happily trade a policy of recognizing same-sex marriage if such a trade would end anti-discrimination laws on such culture war issues as well. Such a policy makes sense and puts faith in the local level instead of the state or national government level. Alas, such a deal is not on the table.

    In the end, the implications of same-sex marriage are significant only in their secondary implications as well. Many supporters see this as a matter of “equality” for gays and lesbians who only need it because they are biologically different (and therefore fundamentally abnormal, and so this cuts *against* normalization of homosexual sex), but many others see it as a stepping stone for more brazen attacks on government policies supporting in-home childrearing, for example reducing tax benefits when one parent stays at home, or per child tax credits/deductions or the like. Those are even bigger battles lurking on the horizon if we do not act to defend procreative marriage today. In other words, I am afraid that same-sex marriage will broaden from equality for the biologically other to what is admitted by everyone to be a lifestyle choice (two-career households with no children).

    The real work, IMO, needs to be done on the other fronts. This means, right now, looking at doing things to provide incentives for multi-generational households and the like. For example, I think we should say that if you have a retired parent living with you, you should be able to deduct your social security taxes from your income taxes. This simple change would dramatically change our approach to retirement and the relationship between retirement and procreation. It means doing things to encourage extended family support and marriage for poorer Americans. But these are often what appear on the surface to be harder battles than same-sex marriage. The problem though is that same-sex marriage is not a strategically defensible issue, but one which rises and falls socially with other issues.

  16. @Daniel:

    “Is it permissible to have a word that describes a relationship which at its core involves a mother and a father coming together for procreation of and subsequent raising of children?”

    How about “Matrimony?”

  17. @Bobby: I disagree with you when you say:

    “I think we can all agree that the state is justified in relying on moral principles of the first category in making laws. Thus, we have laws against murder, theft, arson, etc.”

    This may be the classicist in me but getting back to Cicero (and to some extent Aristotle) here, I don’t think the question is morality at all in these cases but rather the fact that cities can’t function unless the state protects certain interests. I think this approach is proven generally correct historically, and that societies where the state did not monopolize violence simply didn’t develop cities, medieval Iceland being the first example that comes to my mind.

    So the question to my mind is what is the functional requirement for a prohibition? If one is to make an argument against same-sex marriage it is this (and I am not a Christian btw, nor do I rely at all on religious dogma in this argument):

    One basic truth of life is that we get older, and eventually retire from much of economically productive work. When we do, we are supported by the younger generation, traditionally by moving in with our kids or accepting help from charities, and more recently by the scheme we call social security. Either way, these things only work when the birth rate is at least at replacement rate (and ours is now well below that). To the extent that legalizing same-sex marriage either encourages childlessness, further imbalances the genders regarding childrearing (if, for example, lesbian couples were to have more children than married couples of gay men), or acts as a beachhead issue for attacking government preferences for couples having children, legalization of same-sex marriage is a problem.

  18. @logan:

    If I were a betting man, I would bet that the Supreme Court will invalidate DOMA at least in part on states-rights grounds (maybe equal protection + federalism as the lower courts have done). I would also expect that Prop 8 will be a close and narrow decision upholding the 9th circuit or a sweeping reversal (I would bet on a sweeping reversal). Everyone will declare victory and go home and nothing will change other than the state and local level will be strengthened, which will be a good thing.

  19. I’m against same-sex marriage, but this article is borders on the senseless in its ignorance of the philosophical issues it attempts to navigate. It’s like watching a straw-man being burned in effigy – t0 cheers in the comments section, no less!

    First, I’m not sure where the argument comes from the ‘moral subjectivism’ undermines ‘values claims.’ The author seems to think that moral subjectivism amounts to something like, “What’s true for me needn’t be true for thee.” So, is it that the truth-values of moral claims are relativized to individuals who believe them? Because (here’s where the straw-manning begins) this is bad philosophy only because almost no real philosophers believe this. But lots of real philosophers believe in some version of moral subjectivism. Moral claims lack truth values. Moral claims are unknowable and are therefore unassertable. The truth-values of moral claims are inherently mind-dependent, and are thus ‘relativized’ to the set of people sharing a certain ‘way of thinking.’ And on. And on. Philosophers have only been talking about this, explicitly, for about 100 years or so, and implicitly for about 2300. ‘Oversimplified’ oversimplifies just how misleading this sort of generalizing is.

    Anyway, what does the author mean by moral subjectivism here? It seems to be something like, MS: “If A and B are moral subjectivists, then if A believes a moral belief X and B believes ~X, then ceteris paribus neither A nor B thinks that the other should change her mind about X.” Even this oversimplifies – but forget that. It doesn’t follow that if X is “Gay marriage should be legal” (how, btw, is that a ‘value’ statement?) that A undermines herself by believing MS also. And that’s precisely because A’s conception of what a moral claim amounts to isn’t something that should compel others to believe what she believes. Just because A wants gay marriage to be legalized doesn’t mean that she wants you to believe it as well; in fact, she explicitly doesn’t think that her belief should have any sway over you at all.

    Oh. Forgive me, I’d stopped reading. I didn’t notice that the author shifts terms (aka equivocates) in the fifth paragraph. Now, instead of “Gay marriage should be legalized” X is “Gay marriage should be universally embraced.” Well…okay. You’ve got the ‘subjectivist’ there. It would certainly undermine one’s subjectivism if one believed both that “No moral claims are universally true” and that “This moral claim is universally true”. In the words of Wendell Berry: A direct hit.

  20. @Chris:

    Yep, that sounds about right.


    For the limited purposes of discussing moral subjectivism, I’m not sure that the difference between “legalizing” and “universally embracing” is significant enough to carry your charge of equivocation. “Legalizing” here amounts to saying “You ought to recognize the legitimacy of my marriage,” whereas “universally embracing” amounts to “everyone ought to recognize the legitimacy of my marriage.” Starting from the premise, “No moral claims are universally true,” one will run into the same trouble whether he is trying to get gay marriage merely “legalized” or “universally embraced.”

    The Ninth Circuit’s opinion is helpful in showing that “Gay marriage should be legal” is a values statement. The court held, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” This holding presupposes that there is some human dignity that inheres in a person’s sexual identity along with a value that inheres in “relationships and families” regardless of their composition. Whether or not one agrees with these propositions, it is impossible to divorce (pardon the pun) the claim that “gay marriage should be legal” from the assertion that “gay marriage has some value,” subjective or otherwise, which demands its legal recognition alongside heterosexual marriage.

  21. Value statements have a certain form, something like “X is good.” “X should be legal” lacks that form in important ways, mainly because most people don’t think that “legal” and “good” are synonyms. But also, “should be” makes the legal claim modal, while “is” makes good claim descriptive.

    “X should be universally embraced” is much closer to “X is good” than it is to “X should be legal.” For one, when I say, “Charity is good”, part of my meaning (unless I’m a subjectivist in Protagoras’s mode) includes the claim, “Everyone should act charitably.” There is no obviously analogy in legal claims. Part of the meaning of “Charity is legal” is not “Everyone should act charitably.” Implying that legal and moral claims occupy a the same footing – which is not, as I understood it, something that the faux-subjectivist in the OP actually said – just is equivocating unless there’s an argument to fill in the missing assumptions. Answer, so far as I can see, came there none.

    “Gay marriage should be legal” does not mean “Others should recognize the legitimacy of gay marriages,” unless all that it is to legitimate a marriage is to have it be a legal one. If that’s the case, then Catholics, traditionalists, et al have already given up the ghost, since they’ve ceded the ‘traditional’ ground that the state was once allowed to codify legally to the state’s definitional authority entirely. Not a promising strategy, I shouldn’t think.

    I suppose I don’t understand the last bit about the Ninth Circuit. “It is an illegitimate law that serves only to reclassify some relationships as inferior to others.” It seems to remain an open question whether it’s “right” or “wrong” to classify some relationships as inferior to others, but the court seems to be saying that it is not within the law’s magisterium to do only that. After all (though I repeat myself) “It is wrong for gays to marry” is not synonymous with “It should be illegal that gays marry.” Admittedly, I haven’t read the decision or the law, but from what’s been presented here, the Court seems to have somewhat explicitly attempted to withdraw from “X is good” and “X is bad” to questions of legality, tout court.

  22. @Aaron

    I agree with you regarding relativism btw. The question though is what replaces it. As I read Aristotle and Cicero, their approach would seem 100% in line with modern structuro-functionalism in the social sciences, namely that there are functional requirements for certain types of societies, and that those requirements must be met somehow. I think further that while Aristotle and Cicero were looking for a singular ideal model the fact is that once you get to that point, I am not sure one can say there aren’t multiple ways to address those requirements. Furthermore if we agree on the requirements, we may find that there are aspects of our own concerns addressed in the culture of the other side.

    Let’s take the question of homosexuality as an example. Homosexual sex has been around for as long as humans probably, and different cultures integrate or restrain it in different ways. Moreover Aristotle, whose definition of marriage was clearly between one man and one woman would make any gay rights advocate today seem homophobic and this is perhaps one of the most interesting conflicts in our culture. The Right, largely following the Bible, tends to see homosexuals as a threat to society (and largely following the Greeks who were having a lot of homosexual sex,

  23. bah, accidently hit “submit to soon” anyway, continuing….

    Following the Greeks, also tend to be in favor of continuing to privilege opposite-sex marriage because of its connection to procreation. Now, the Left *claims* to be in opposition to these things, but they, in the name of “normalization” treat gays and lesbians as paragons of abnormality and something which *cannot* be normalized (as opposed to *should not* on the right, never mind the fact that the Greeks *did* normalize homosexual sex). And thus one can see the ground work for a different system of social control from the left, one which says “you aren’t born that way, are you?”

    Anyway, my point here is that I think that the challenge is to say “what can replace moral relativism which is not mere argument from authority? Can we still accept that problems may have multiple solutions?”

  24. @Chris:

    I think it’s difficult to sustain the argument that society is not making a moral judgment when it elects to criminally punish certain conduct. After all, the election to protect certain interests (e.g., another person’s life or property) results from the exercise of moral judgment hat those interests ought to be protected.

    Of course, this moral judgment need not derive from the deductive application of some moral law. One can, for example, arrive at a moral principle from pragmatic or induective reasoning, such that certain conduct is deemed to be morally bad because our experience shows us that society falls apart when certain interests are insufficiently protected. So, maybe we’re talking about the same thing. You’re just not comfortable using the term “moral” to describe such reasoning.

    I agree with you that procreation is occurring at too slow a rate. Of course, it’s awfully hard to blame our faling birth rate on SSM. After all, even without SSM, most gays would probably elect not have children.

    In my view, the low birth rate is primarily attributable to economic conditions. When my dad finished high school in his hometown in Indiana in 1962, most people did one of two things: (1) start working for GM the week after high school graduation; or (2) get a four-year degree in engineering or business, and come back and work for GM the week after college graduation. Either way, most families at that time were pretty well economically established well before either parent turned 25. Today good jobs are scarce. And the available good jobs require advanced degrees and 75-hour work weeks. So, kids go to school for 7-8 years, and then spend another 5-6 years paying off $200k in debt. By the time they’re 35, they’re the same place financially that their parents were at 23. Gays getting married is not the cause of our low birthrate. No. It’s that we have too few good jobs for that people can do with a high school diploma or a four-year degree.

  25. @Bobby:

    I want to explain why I am uncomfortable with calling this a “moral judgement.” Well, there are actually a few reasons.

    If you follow the line which holds that law is an exercise of ethics and hence morality, then whether jay-walking tickets are a way to say that such conduct is immoral. Moreover let’s consider Washington State liquor laws. In such a view we’d hold that it is somehow more immoral for me to invite a 19 year old friend of mine over and share a store-bought beer but less immoral to have a few teenagers over and drink heavily of homemade beer. The former is illegal in Washington State, but the latter is not. I don’t think however that anybody would conclude that the morality of giving a beer to a minor depends on whether you bought the beer or whether you made it. This is, however, the legal line. Consequently morality and legality may overlap to a degree but they can’t remotely be synonymous, nor can one be a subset of the other, at least where regulatory law is concerned. These laws do involve determinations over balancing interests of various parties but I don’t think they involve moral condemnation per se. Just because you can do it doesn’t make it right. Just because you can’t do it, conversely, doesn’t make it wrong.

    This gets to what I think is the root of the problem. I think you’d be hard pressed to show me a morality issue involved in responsibly drinking beer with a 20 year old, for example. And we don’t have the law to prevent this. Nobody is outraged when such happens (and it does happen frequently). And only a few seem to think you should follow the law merely because it is the law. Instead we have the law to prevent a different problem but the law is a blunt instrument and so it’s all we have. In essence the law against giving alcohol to the underage is designed to prevent straw purchases and other harms which enable the underage to drink irresponsibly and endanger everyone else’s lives when they then get behind the wheel. However, if you make a law which only addresses that, it will be impossible to enforce. Consequently the practical considerations of the law require that it is both extremely overinclusive and underinclusive regarding morality. Again, we have the case in Washington State which says I can have teenagers over to my house and we can all get drunk on home brew, but I can’t responsibly have a beer with a 20-year-old friend.

    IANAL but I am a homebrewer and have been since I was 16. I brew with my kids. I think it’s a good experience for them. I am reasonably familiar with the Washington State laws in this regard and what I can or cannot do to pass expertise on to the under-21 crowd (really I can do anything short of letting them leave my house with beer). These laws are strange and have absolutely nothing to do with morality.

    This brings me to my third point which is that the law faces a very different set of practical constraints than does morality. All knowledge is local and consequently the best moral judgements are made on the smallest level possible (family, team, maybe neighborhood) while legal standards can only be made by people with no direct knowledge of the circumstances of any given infraction. Thus there are great evils in the world, like bullying or micromanagement, which are impossible to outlaw because you simply can’t write a law which overlaps with possible behavior well enough. Similarly the relative amount of moral and upstanding conduct which is swept under any regulatory system and made illegal is inescapably high.

    As for the falling birth rate, the sad fact is people aren’t having more kids because they don’t want to. Yes, additional education requirements are a big part of this. There is no denying that. But the fact that children no longer feel like they are obligated to care for the preceding generations in any way other than paying taxes is another part. SSM is a continuation of that trend of institutionalizing marginalizing childrearing. It is neither in my mind the largest or most important issue in that larger struggle but it gets the most press now. The real question is what we do. I have two proposals I would like to offer:

    1. Grant preferential tax status to businesses owned and operated by married couples and their adult children. Among other things this would cement the relationship between marriage and children, it would give women space to be both economically involved and mothers of larger families, and it would strengthen marriage by threatening equal financial doom on both parties if they separate. It would, finally, help decentralize the economy and help those with less education compete on their own, allowing things like self-learning and apprenticeships (very useful in the real world but of no use to HR departments) to take off again.

    2. I would like to see a tax credit available for those who have retired parents (perhaps expanding this to aunts and uncles too) living with them rent-free. The tax credit would be equal to social security taxes paid (both employee and employer portions) and would have the effect essentially of reducing the net tax burden generally of those who are caring for their elderly relatives. It would further counter the idea that independent retirement is a matter of not being a burden, and it would reconnect caring for children in childhood to being cared for in old age.

  26. @Chris,

    I pretty much agree, but would add the following.

    1. All criminal statutes are a per se effort at making moral judgment. As you note, such judgments are often inconsistent at certain points. In some instances, such laws have carve-outs that make no sense logically, but which reflect the practical realities of law enforcement and evidence gathering. That doesn’t take away from the fact that such laws reflect an effort to make moral judgments.

    2. Family-owned businesses will not restore the economic fortunes of the American middle-class. To do that, we will need to have a large-scale manufacturing base. Places like Buffalo, Akron, Toledo, Flint, and Muncie weren’t built on a bunch of family-owned businesses. They were built on the idea that we could design and build high-tech products in this country, and that we would pay higher prices to preserve these industries and maintain working-class communities. We cannot have a thriving middle class unless we have a thriving manufacturing base, and the political will to make it happen.

  27. @Bobby, I see morality and law as two different attempts to solve social problems, but they exist on very different scales and face very different realities. A third method, namely an honor/shame system is something which tends to take a sort of middle-road but which we have lost. I don’t see what’s gained by saying one is a subset of the other, and my concern is that conflating them ends up suggesting that whatever is legal is hence moral and similarly that one cannot be morally compelled to violate a law.

    But going back to the sharing alcohol with underage example, one of the issues is that it involves balancing of interests in the law. I can share a home-made beer with a 16 year old not because this is different morally than a store-bought beer but because the interest of household autonomy and the desire not to be poking around households in other ways regarding alcohol production. To my mind this represents a judgement valuing autonomous households, not a practical concession to the realities of evidence gathering. There certainly is nothing stopping a state from saying that homebrewed beer must be permitted, taxed, and inspected.

    As for the question of downsizing business and the basis of the economy. The other basis of the economy going back to the dawn of the industrial revolution is that if you keep the poor landless and dependent on work, that you can exploit them, and as Adam Smith noted, wages are negotiated on the basis of power difference, not on the basis of supply and demand. It is entirely true that encouraging distribution of means of production (by favorable tax treatment for example) would transform our economy by raising wages significantly (since workers would be empowered to leave the corporate workforce) and so forth.

    I don’t think it necessarily means, however, that we have to give up on high-end manufacturing or production of goods beyond what a single household can do. It just means the ownership over the tools of that manufacturing would be better distributed, and that the form of the organizations making the products would be different. In the Emilia-Romagna region of Italy, for example there are many small to midsize manufacturing businesses which coordinate on global projects and this is a major part of the reason why the area has a very high GDP.

    Rather than just rely on one example though I would also point to my own profession and the rise of open source software. While there are large businesses which participate in open source development (including btw IBM, Microsoft, and Intel) a very large amount of work is done by the self-employed and there is a very porous border between formal employment and self-employment there. Open source software is another implementation of what is essentially distributism, where the worker owns (in the sense of having the right to control for further use) his or her own means of production. We now see extremely complex and mission critical software built in this way, including PostgreSQL as a database management system and the Linux kernel. PostgreSQL is in many ways really cutting-edge in many ways as far as a database system.

    The goal is to decentralize control and disempower financiers, empowering the workers in the process. I don’t think that means we have to give up on manufacturing, technology, research, etc. to do so. It just means a different form of relationship dominates these fields.

  28. Logan refers, quite properly, to what is constitutionally enumerated, not what is morally Established or Preferred. There may well be a moral order to the universe, and to the construction of humanity, and it may well by ordained by God Almighty. However, human governments are notoriously incompetent to judge exactly what God does and does not approve, as the Framers of our constitution recognized.

    Thus, for purposes of a legal measure, “I want it, and I want it now, and its not FAIR if I don’t get it,” is as inapposite as “it offends my sense of morality.”

    “Equal protection of the laws” applies to those who are “similarly situated.” This is a distinction the Supreme Court found it necessary to make as soon as it began to expound upon the meaning of the Fourteenth Amendment. Otherwise, five year olds would file suit to be allowed to vote, having been denied the “equal protection of the laws” compared to 25 year olds.

    Marriage, as by and large defined in state laws, and understood in federal practice that deferred to an area reserved to the states, acknowledged and regulated a specific human relationship that pre-dates human history. It recognized that the human species is fundamentally divided into two sexes, and that these two sexes have mutually complementary functions. Two gay men are not similarly situated to a heterosexual couple, and two lesbians are not similarly situated to either one.

    Now a community might choose to recognize one or both of these other combinations in some manner, or even extend to them the dignity of a marriage license. Personally, I don’t much care. I wouldn’t lift a finder to stop it, or to advocate it. The right of same-sex couples to be left alone by the police is already well established. Same-sex couples are socially accepted by many, although not by all. But, nobody has a constitutional right to the approbation of the community.

  29. Chris, a couple of responses:

    1. Home-run businesses simply will not work. They are too vulerable to disruption. You mention OSS, but I’ll mention the disappearing small computer shop. No one buys custom-made computers from small family businesses any more; either it’s off the shelf from Best Buy or Amazon, or they cut them out entirely and build their own from Newegg. And it’s impossible to meet those prices when you need to rent a storefront.

    The ones that do survive are boutique businesses which serve an entire city. Even then, the net is killing them. Who need antique stores when you have ebay? Why hire a local programmer when you can plunder the web and get someone willing to work on a per-job basis?

    2. We fight gay marriage because all the other battles have been lost, and this is the capstone of it. Trying to change or strengthen marriage is even harder than SSM, because all SSM is a question of what it means. It’s not saying “divorce should be harder to get,” or “you shouldn’t go to college; work backbreaking, unfulfilling work cleaning up others excrement as a nurse or plumber instead.”

    The trad position has been refused so much that we can’t even get people to agree that marriage is linked to procreation of children unique to that union. The only thing trads can do is keep following what they believe, and shelter themselves from the societal effects of the modern mindset. It’s really depressing, but this is life.

  30. @Chris

    I don’t follow your reasoning on law. The promulgation of criminal statutes (and the concomitant punishments that come with violating those statutes) is based on the notion that the criminalized conduct is deemed to be morally wrong and is therefore worthy of punishment. Simply put, moral judgment is the primary policy lever behind the criminal law. Such judgments may be imperfect and seemingly inconsistent at times, but that doesn’t take away from the fact that they reflect an effort at exercising moral judgment against certain conduct. The criminal law is the one place where the state makes moral judgments; in general, the civil law (tort, property,contracts) does not consider moral judgment (except for the doctrines of inconscionability in contract law and the doctrine of inalienability in property law).

    Also, open-source programming is the exception rather than the rule. As far as I know, no one is manufacturing LEDs or building diesel engines in a garage with the help of their kids. Your model would only work in industries where the costs of production are largely variable. Once fixed costs are high (as is the case in almost every industry), your model breaks down.


    Traditional marriage ceased to exist a long time ago. Besides, traditional marriage can’t exist in isolation. It has to function as an integrated part of a broader culture. The culture that nurtured traditional marriage started disappearing after the end of WWI. And traditional proreation-centered notions of marriage and family disappeared from the broader culture by the late 1960s. In that sense, it’s just disingenuous to say that one’s opposition to SSM is based on a desire to preserve traditional marriage. It’s about like justifying one’s beliefs by pointing to the practices of the Austro-Hungarian Empire.

    The opposition to same-sex marriage is rooted in religious condemnation of homosexual conduct. In the days when we mistakenly thought that homosexuality was a form of mental illness, laws against SSM could be justified on that basis. But those days are gone. And the state has long since ceased enacting laws aimed at preserving traditional marriage. So, given that the opposition to SSM is largely religious in nature, I see no reason why the state should entangle itself in making moral judgments whose primary justification lies in the realm of religious dogma.

  31. @Bobby

    I think we have an issue of definition here. The way I see it, there are three possible approaches to solving social issues:

    1) Deem conduct illegal. Such conduct will be punished by society *without regard to* any understanding of the finer details. The law is a blunt instrument.

    2) Deem some conduct either honorable or dishonorable. Such conduct then increases or decreases the standing of an individual within the community based on the public perception of an action. Members of honor-bound societies thus tend to live life considering the public impact of actions. All societies have this, however, to some extent or another.

    3) Deem some conduct immoral and argue that it impacts the spirit to engage in it. Morality though is something which affects the individual. In this view of morality, the Good can be known by the individual, and inward transgressions against the Good diminish one’s spiritual character. I would suggest we get this view primarily from the later Greek philosophers and that as far as I can tell, pre-Christian, oral-formulaic societies in fact did *not* have such a view of morality. They instead made do with a view of honor and law, where law applies to the individual, the society, and the universe in a sort of repeatable pattern.

    I suppose if you use “immoral” to mean “socially harmful” I can’t argue with what you say. I just don’t find that to be a very useful term.

    I also don’t think that all the opposition is as religious as it appears. I am, for example, a Neopagan, a Heathen, who reads the classics, and it isn’t infrequent that I read an argument that the Vatican makes and I think to myself something like “this is very closely patterned on something Tacitus said,” and this is true whether or not I agree with them. While the Vatican’s condemnation of homosexual sex is largely religious in nature, their argument against same-sex marriage is quite secular based entirely on thinkers like Aristotle (and it’s worth pointing out that Aristotle would make most gay rights advocates look downright homophobic).

    The argument over same-sex marriage is often thus severable from the argument on homosexual conduct. Aristotle was *for* widespread homosexual conduct subject to certain limitations (a position unthinkable even to the gay rights movement today), but he reserved a special place for married households as tied to both procreation and enculturation of the next generation. This special place essentially is the foundation of society in a way we have lost. To Aristotle government is not a union of individuals, but a union of married, procreative households. This is not a religious view. It is just the inexpensive way to make a society work (Balinese *Hindu* society, for example, largely works on this principle today). Same-sex marriage is an economic luxury but it is bought at a huge cost, and I don’t many people are really thinking about the social cost involved.


    Please remind me what antique furniture eBay sells online. Another example might be that while I buy most of my books off Amazon, most I buy used from independent booksellers just using Amazon as a listing and payment service. I would like to see the payment side decentralized, but

    Additionally, I have bought most of my recent computers from storefronts as either emergency purchases or special orders. The prices have always been competitive, but then I am used to living in a rural area where storefronts may be a bit less expensive. Computers are however somewhat special because while the assembly can be localized the component manufacture really requires fairly large, centralized facilities (at least for silicon fab etc) and so the best we can hope for there distributism-wise is for Intel, nVidia, and the like to have good employee stock purchase plans.

    Similarly I have seen a lot of antique stores in rural areas, and it is nice to be able to go and look at what you might think about buying instead of relying on photos taken with an unknown color depth, displayed over the internet.

    I do think that household-owned businesses are the way forward. They allow an integrated living which reduces the barriers between work and family so that women can have it all rather than deciding “do I want kids or a career?” They allow raising kids in the artisan’s workshop instead of the factory farms of daycare and public schools. The issues of disruption are real but there are solutions to this, namely coordination of networks of household businesses.

  32. While I appreciate the article, I think you’re posing the wrong question. Instead of asking why marriage equality (there is no such thing as “gay marriage”) should be enacted, one should ask why marriage equality should not exist. Human rights should be assumed to exist unless there is a compelling reason for them not to exist.

    Most critiques of equal marriage rights tend to center around religion, but this is irrelevant in the United States, as this is a constitutionally secular country. The other primary argument, as Mark mentioned in this article, centers around procreation and its beneficial effects for society. Mark is correct that a same-sex couple cannot naturally reproduce (although they can still raise children via adoption, IVF, surrogacy, or other methods), and argues that this should bar them from the ability to get married. However, following Mark’s implied reasoning (that marriage exists for the purposes of procreation, and that therefore only couples capable of procreation should have the right to marry), this also means that elderly and infertile heterosexual couples should also not be allowed to marry, as they too cannot naturally reproduce.

    If Mark’s objection is truly based on philosophical concerns, rather than religious convictions or personal bigotry, he will have to admit that either same-sex couples should be entitled to equal marriage rights OR that same-sex couples AND infertile heterosexual couples should be barred from marrying.

  33. I feel like I should point out that LGBT couples DO have children, and that the lack of marriage rights keeps them apart during the most terrible of times (such as when one partner is hospitalized and the other cannot visit because she/he isn’t “family”).

  34. Simply put, moral judgment is the primary policy lever behind the criminal law.

    By this criterion, if someone believes the gods have placed a taboo on wearing red if its Tuesday, they are justified in demanding criminal punishment of those who do so. Its a moral judgment, after all.

    The primary policy lever behind the criminal law, in a society that is open to a variety of religious beliefs, would then be that the action proscribed inflicts actual harm on another, or others, or the community in general, not that it is immoral. (Sometimes individuals are also protected by the law from harm they might do themselves, but that can become a very slippery slope – how much harm may one risk before the nanny state intervenes for your own good?) One might well say that it is immoral to harm others, but there are many other patterns that might be deemed immoral that are not criminal.

  35. Russel, I want to respond to this point a bit.

    “Granted that same-sex unions cannot be intergenerational in the way which the ideal form of heterosexual marriage presumably ratifies, but locking the legal ratification of relationships into a nature-bound definition of intergenerationality and fertility seems to me to lean very, very hard on an essentially inequalitarian model of male-female relationships…and there came a point where I, mainly as a result of my experiences as a father of multiple daughters, just couldn’t agree with what I saw as sexual inegalitarianism any longer. And hence, my resistance to same-sex marriage fell apart.”

    I think this merits response because it has merit. I share your sense of the problem. I do not share your sense of your solution and I want to explain why I see such an approach as problematic.

    The first point is that it is *very* true that within the confines of modern Western society, we peddle gender inequality under the banner of equality, suggesting that women should have the same opportunities as men while at the same time refusing to acknowledge that reproduction is a fundamental aspect of life (for we are all products of it) and therefore the ways in which men and women are differently situated to reproduction ensure that expecting women to succeed where success is a man’s game is just another form of inegalitarianism. Exhibit A is Marissa Mayer’s 2 week maternity leave statement.

    Recognizing the problem in these terms is troubling because it suggests that our entire corporate economy is *fundamentally* sexist and women can achieve success only to the extent they give up on having families as large as they’d otherwise like. This tells women they can’t “have it all” but men can. This is, I think as you recognize, a very large problem.

    The question though is what one does about it. The solid truth is that we are social creatures and none of us make it far through life without the help of others. Large, cohesive family structures have traditionally been important protections for women particularly when circumstances become so problematic that they must leave their husbands. It is very common that in societies for example that don’t allow women to get divorced they nonetheless can get proxy action through their parents.

    In my view undermining the link between marriage and reproduction does not protect women. It just further says that reproduction must be eschewed for equality, or worse that women should be able to be as detached from reproduction as men are, and therefore masculinity is the model of normality, which is, as some feminists have argued, a very anti-feminine position (see “Birth as an American Rite of Passage” by Robbie Davis-Floyd).

    In my view the real drive to equality has to come from us raising our sons and daughters to be self-employed and to eschew the view of success which says that it comes from work done for someone else’s profit. Success comes instead from one’s own contacts, social connections, and the works of one’s hands and mind. These include everything that goes into a household. There is no division between family life and work life. Family life is a matter of working. Work life ideally should be spent around one’s family. When this happens though, there is a lot less inequality and a much greater opportunity to “have it all.”

    What we have to eschew however is career-worship.

  36. @Jenkins

    You missed my earlier comment. The moral judgments embodied in the criminal law are moral judgments that rest on objective observation of the physical world (and not merely on religious dogma).


    You seem to be missing my point. I’m only interested in the question of whether the state’s promulgation of criminal statutes is an example of exercising moral judgment. I have argued that it is. I can’t tell whether you are agreeing or disagreeing. And, yes, I would define “moral judgment” broadly, so as to include any condemnation of conduct that is deemed to be harmful.

    As I noted above, when the state exercises such moral judgment, it must do so by relying exclusively on objective observation of the natural world. The state cannot pass laws on the basis of religious dogma.

  37. @Bobby:

    You wrote:

    “As I noted above, when the state exercises such moral judgment, it must do so by relying exclusively on objective observation of the natural world. The state cannot pass laws on the basis of religious dogma.”

    I don’t see how such a line can actually work in practice though. Or rather I cannot imagine a religious justification by any existing religion I know of for any restriction which would not be based on such observations.

    Suppose the state passes a law, “Every citizen must attend church at least three times per month.” Such a law could be easily (and well!) justified by looking at the social functions that churches provide and noting that they strengthen society in important ways which have nothing to do with whether their teachings can be said to be objectively true or not. Same with laws banning premarital sex, or banning alcohol, or requiring that women cover their hair in public…. Can you think of an existing religious dogma which could not be justified as a basis for a law by looking at the natural world?

  38. I got some reply notifications that I assume may have been moderated away but there are some points worth responding to there too.

    The first point is that same-sex couples sometimes have children, either from previous heterosexual relationships, or by adoption, IVF, or surrogacy and that this is a reason to recognize same-sex marriage. I actually agree that same-sex adoption is better than foster care and that the pre-existing children in de facto homosexual households quite arguably have a right to the stability that marriage might provide, whether or not the parents do. To me this is the strongest argument for same-sex marriage. I disagree with IVF, artificial insemination, and surrogacy however because these things decouple sex from reproduction and they fundamentally change the relationship between reproduction and gender. I personally wonder if we become more of a sperm bank society, if women will be treated to *greater* inequality because women will be statistically more likely to have children than men are, and also more likely to have greater numbers. Of course we are assured that homosexuals are biologically abnormal so it will never be more than 3% of the population but the latest Gallup survey results on sexual orientation and geography disagree with that assessment, showing significant gender, age, and geographical differences there.

    If the argument was “any couple with pre-existing children needs to be able to get married regardless of the sexes of the couple” or even “we need to allow same-sex marriage because we can show, from the states which have experimented with this, that it will lead to more children being adopted from foster homes” I would be all for it. However, such a child-centric view of marriage is attacked by SSM advocates, because they can’t let the issue be the rights of children to married parents. It has to be about gay rights, and that’s the problem.

    This gets to the “human rights” argument, and this idea that human rights should be presumed to exist. I see this as a very pernicious argument because human rights are not well enough defined that we can prove what qualifies or not. I wonder how many of those who defend an unqualified right to marry also defend an unqualified right to self defence coupled with a right to keep and bear arms required for that purpose.

    The problem then becomes the way that the human rights dialog plays out over place and time. Because human rights are presumed to be self-evident, they are a product of a specific culture and place and therefore the insistence that they are universal implies that that culture *should be* universal.

    Consider for example the argument that Jewish circumcision is a human rights violation. The argument is that Jews have a right to believe whatever they want but not a right to a culture based on their beliefs. But we humans are social and cultural animals and if there is one thing that we must have a right to it is culture. That’s where the human rights argument ends up colliding heads-on with itself.

  39. Chris, about 54,000 listings on Ebay just for that category alone. In my town we don’t have a single antiques store, because they generally make no money and are hobbies of the retired. You cannot afford the rent or taxes here when you open 10-2 every day except Sunday. We also don’t have used bookstores for the same reason. The “artisanal” businesses that survive are odd lots stores, nail salons, hairdressing supply stores, the odd restaurant, and a comic store that doesn’t sell comics.

    I think people have these fantasies about what life in small town America is like. I’ve lived in two small towns, and neither of them had people opening up microbreweries or family run shops. Mostly it’s just been rust and disintegration. The net has disrupted us so much in just twenty years. I don’t think people will find the capital to even start those businesses; instead I think we will just decline in population until we reach the threshold where we have a small enough population to survive the end of work.

  40. @Chris

    You seem to be reading too much into what I’m saying. I was simply identifying the universe of data from which the state may draw in making moral judgments. My point was to distinguish the way that the state makes moral judgments versus how the church does. Of course, there are other considerations as well, such as whether the state’s proposed action is substantially related to a legitimate governmental purpose.

    The original post suggested that gay couples bear the burden of proving that they are entitled to marriage licenses. Of course, this reasoning makes the implicit presumption that the state is otherwise entitled to deny marriage licenses to gay couples. I see no reason why one should make such a presumption, especially where most opposition to SSM is rooted in religious objections to homosexuality. This notion is embodied in the Cleburne Living Center line of cases.

  41. “Chris, about 54,000 listings on Ebay just for that category alone.”

    How many of the items listed does Ebay hold title to the actual item? Right, the answer is “none.” To the extent that Ebay was revolutionary, it merely enabled downsizing certain forms of business. In essence Ebay, for all its evil, is actually an enabler of this sort of household business movement.

    In my town of 3000 people (serving an area of approx 15000 residents) we have two bookstores and at least two antique stores. Again, its a different environment. There are a significant number of tourists passing through, shop prices are minimal, and so the benefits are worth it. Of course now that there is a Walmart, we will have to see what happens.

  42. “The original post suggested that gay couples bear the burden of proving that they are entitled to marriage licenses. Of course, this reasoning makes the implicit presumption that the state is otherwise entitled to deny marriage licenses to gay couples. I see no reason why one should make such a presumption, especially where most opposition to SSM is rooted in religious objections to homosexuality. This notion is embodied in the Cleburne Living Center line of cases.”

    The hidden assumption here is that condemnation of homosexual sex is inseparable from denying same-sex couples marriage licenses. While you can find, in Abrahamic religious traditions, condemnation of homosexual sex, you won’t find any discussion of same-sex marriage. So the argument goes, marriage is a sexual institution, and so the only reason to be opposed to same-sex marriage is to be opposed to homosexual sex.

    I don’t doubt that there are some people who hold such a viewpoint. Interestingly the Vatican is not one of them (I am not a Christian, much less a Catholic btw). When the Vatican says that marriage between one man and one woman is the “accomplishment of civilization” they are saying, in essence, that the Greco-Roman model of marriage should be preserved. They are furthermore implicitly citing folks like Tacitus (who praised the Germans for being unique among barbarians for practising monogamous marriage) and Aristotle (who saw procreation and rearing of resulting children as the reason for marriage). Aristotle’s views on homosexual sex were sufficiently brazen as to make gay rights advocates today appear to be quite homophobic and so he shows that it is in fact quite possible to be extremely accepting of same-sex sexual contact and at the same time have a special childrearing institution in society built around the married household. It’s worth noting that anthropologist Ronald Grimes has noted that procreative marriages are even more universally ritualized than processing dead bodies is, i.e. fewer cultures don’t specially sanctify procreative unions than don’t have funerary traditions.

    So no, I don’t think the reluctance to grant marriage licenses to same-sex marriages is necessarily based on religious dogma. It is instead a holdover to a time when one “got married and had children” and perhaps even moved in with one’s children on retirement. The argument right now is how severable marriage is from having children and raising children, and indeed I have seen people argue in other sites that we should recognize SSM because it is the first step in attacking government preferences for, say, one-income families and families with children (it isn’t the first step, as that was social security, which severed the obligation of children to care for parents in retirement).

    My argument actually is that we are running the wrong direction. SSM is a relatively uninteresting battle, and I am happy to trade it away for an end to social security, or at least heavy government preferences for multi-generational households, preferences in favor of home schooling, heavy taxes on sperm bank-related services and surrogacy contracts, and other things that would reconnect marriage with raising children and reconnect sexuality with reproduction. If gays want to get married and adopt, let them, but let’s roll back this heavily individualistic rights-oriented view of marriage. Would you accept such a deal if it were offered?

  43. @Chris

    I’m not interested in cutting any deals with you. My only reason for commenting is to point out the logical flaw in the original post. The original post presumed, without substantiation, that gay couples bear the burden of demonstrating that they are entitled to marriage licenses. I see no reason to make this presumption. In general, our case law places the burden on the individual who is mounting the equal-protection challenge. But there are exceptions, which are recognized in the heightened-scrutiny cases and in the Cleburne Living Center line of cases. In my view, bans against SSM would fall in line with the Cleburne Living Center line of cases. I say this because much of the justification proffered for SSM prohibitions relates to religious dogma. After all, you have admitted that our culture long ag severed marriage from a procreative context.

    I am not suggesting that marriage is necessarily a fundamental right in all contexts (which would trigger heightened scrutiny of any laws relating to marriage). You seem to be suggesting that Cleburne Living Center is inapposite, and that this is more of a Carolene Products situation.

    Also, please note that I have no interest in philosophical discussions or broader policy discussions. I’m just interested in the narrow legal question of where the burden of proof should lie regarding challenges to a state’s refusal to issue a marriage license to a gay couple. Under the circumstances, I believe that the burden should shift to the state, and not be placed on the individual (in this instance).

  44. @bobby

    Ok, so here’s the source of the disagreement over this issue: Is marriage an institution primarily for the benefit of the spouses? Or is there a quid quo pro regarding greater society? If there is, then what is it?

    You haven’t really responded to my objection that much of the objection to legalizing SSM comes from sources of classical philosophy and a desire not to finally sever the last bit o the tie between procreation and marriage. A lot of people who are concerned about SSM are also similarly concerned about the rise in out of wedlock births in this country and the decay of the nuclear family as well as the impact that this has on children. I think it is overly dismissive then to say this is all about homosexuality since procreation no longer has anything to do with marriage.

    The argument really is over whether marriage should be tied to procreation or not, and if you say that the objection to removing this tie is merely religious then the same would be true of policies aimed at strengthening that tie as well, would they not? We can never tax sperm banks at high rates or surrogacy contracts because that would have a disproportionate impact on gays and lesbians, and it supports the superstitution that sex has anything to do with reproduction, for crying out loud. We can never get rid of social security because it’s just religious dogma that children should care for their parents in retirement, or the superstition that strong families with mutually supporting relationships are the foundation of a strong state.

  45. Thanks for sharing. I found your arguments to be respectfully and tastefully written. I am in support of marriage equality, and my main response to your argument centers around your claim that marriage rights are dictated by nature. It seems you conflate marriage and regenerative mating. While I would agree that it would be absurd for homosexual couples to expect to reproduce through mating, I disagree with your claim that this truth dictates civic marriage. Marriage, in this nation after all, is nothing more than a legal union between adults. There is no religious or natural order implied in a marriage conferred by the state. It is for this reason that restricting marriage is “unfair” or “not right.” We should be dealing with civic rights not natural rights. Homosexual couples can’t expect offspring to result from their relations because this defies natural biology. However, marriage is a matter of civic relations. Restricting marriage excludes otherwise full citizens from a civic right. This, in effect, diminishes their status as citizens because they have no access to all state-sanctioned services. Marriage equality lies, not in the expectation of natural or biological equality, but in civic equality. As legal, tax-paying citizens, they have the civic right to all services, including unions, that are sanctioned and controlled by the state.

    I am, however, refreshed to see such mature dialogue about such a controversial subject. It is only through lively and respectful debate that we can ever expect to improve ourselves.

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