Short background: most liberals think that gays should be allowed to marry. Conservatives split into two camps: those who think gays should not be entitled to marriages or civil unions (the legal equivalent to marriage but without the word "marriage"), and those who think gays should be entitled to only civil unions. Still others believe that the state should not sanction marriage at all and instead recognize only civil unions to couples, regardless of sex.
I tend to think that the only philosophically tenable positions are the first and last (those affording equal rights to straight and gay couples). To see why, let's analyze the role of the government and the basis of legitimate laws.
Recognize that whenever the government passes a law, it is using its sovereign power to produce a certian outcome in line with that law by coercing citizens into acting accordingly (lest they face criminal sanctions). Clearly this infringes on individual liberty, so we try to ensure that each law actually serves legitimate purpose (otherwise it would be an unjust restraint on freedom). There are three possible reasons for wanting to make something illegal: 3rd party harms, paternalism, and moral repugnance. I will quickly review each of these and then examine where in these justifications laws banning gay marriage fit.
3rd party harms: the term "3rd party harms" (or "neighborhood effects") refers to the adverse consequences of an action on a party other than the actor. Laws designed to prevent 3rd party harms include those against murder, theft, rape, assault, etc, because they deter and punish those who commit these actions against other people (the victims). 3rd party harms are the most uncontroversial justifications for laws, because everyone agrees that the government should serve to protect citizens from each other.
Paternalism: paternalism refers to the idea that the government sometimes knows better than individual citizens and should therefore act in their interest (imagine a father forcing his daughter to do her homework because he knows the long-term benefits will outweigh the temporary displeasure of doing it). Paternalistic laws serve to protect only the actor from himself, not to protect others from the actor (as laws protecting against 3rd party harms do). The best example of paternalism is seatbelt laws (my not wearing a seatbelt hurts only me, yet the government believes it has a duty to protect me by forcing me to wear a seatbelt). Libertarians think that laws should not be paternalistic, while most liberals and conservatives would accept some degree of state paternalism. In On Liberty, John Stuart Mill writes "That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." Thus, Mill argued that only laws protecting against 3rd party harms were valid, and laws based on paternalism (or moral repugnance, or any other reason) were illegitimate.
Moral repugnance: this one is easy. People have moral aversions to incest, bestiality, necrophilism, and yes, homosexuality. These reactions can be based on religious doctrine, personal preference, or both. People find such activities so revolting that they decide to legislate bans against the activites (only until 2003 did Texas legalize homosexual sodomy). I think (and most legal philosophers would agree) that moral repugnance is an entirely illegitimate basis of law--but more on that later.
Upon what justifications does prohibition of gay marriage rest? Advocates of the ban often argue that there are 3rd party harms incurred by gay marriage, specifically that children with gay parents have difficulty growing up and face stress, confusion, etc. I find this argument unconvincing. There is no reason or evidence to indicate that gays are inherently or empirically worse parents than straight people. Moreover, it seems obvious that growing up in a poor, single-parent household is far worse for a child than growing up in a family with two (presumably loving) same-sex parents could be. If the first case is indeed worse, then consistency requires that conservatives also support banning poor, unmarried individuals from having children. And I'm sure they wouldn't. So to the extent that "harm to the child" is a valid 3rd party harm in this case (I don't think it is), even conservatives would be forced to concede that this amount of harm isn't sufficient to justify a ban. (I'm also disappointed with those on the religious right who use this argument, because they lack the intellectual honesty to admit that their aversion to same-sex marriage is based on religious doctrine and personal repugnance, not on genuine concern for those helpless, doomed children adopted by gay parents.) One last possible 3rd party harm is the erosion of the value of marriage: advocates of this argument claim that gay marriage destorys the value of straight marriages. But because these advocates derive the value of their marriage from their religion, not the state, it seems that the value of heterosexual marriage remains in the hands of churches (who are free to sanction whatever marriages they choose), not in the hands of the government.
The next possible basis for a gay marriage ban is paternalism, but clearly the ban has nothing to do with paternalism, since gay couples are only better off by being allowed to marry: they are happier, perceived as a more legitimate union to the public, and entitled to the legal benefits of marriage (such as survivor benefits, joint filing of taxes and bankruptcy, tax exemptions, family visitation and child custodial rights, and access to various family-only services).
The only remaining reason for banning gay marriage is moral repugnance. Christian conservatives find homosexuality morally impermissible, and gay marriage even more so. I think, however, that it is wrong to conflate personal morality with legal jurisprudence, for a few reasons. First, it seems unjust to impose religious or moral beliefs on others through the government, especially if others' lack of adherence to these beliefs doesn't affect the Christian voters themselves (no 3rd party harms). Second, moral repugnance has historically led us astray by producing laws that we now find unjust: look to laws condoning slavery, racism, subjugation of women in the household and in politics, etc. (and note that all of these were explicitly or implicity condoned in the Bible). Reliance on moral repugnance as a justification for laws allows people to evade making rational justifications for those laws. Why should incest be illegal? Because it's gross? Immoral? That simply isn't good enough. And while there do exist good reasons for prohibiting incest, most people never recognize them because they are content to think that morality alone is enough to justify a legal ban. Third, using the law is not the right way to spread or enforce one's religious beliefs. Would a Christian support a law banning divorce or adultery (the 7th commandment)? What about a law prohibiting bearing false witness (lying, the 9th commandment)? What about simply being envious (the 10th commandment)? Even disregarding the practical problems of implementation, I don't think that Christians would support such laws, and they would be right in not doing so. In the same way that Jesus didn't want the Roman Empire to become a theocracy that forced its citizens to obey God's word, he probably wouldn't want the United States to become one either. Christians ought to spread the Gospel through interacting with others on a personal level, thorugh love and compassion--not through force. And remember that advocating a law against gay marriage is advocating the use of government coercion to regulate behavior. So while Christians want people to be moral, that morality should be a product of free will, not one of government force and societal discrimination.
8 comments:
i like ur design :)
and interesting way to argue
so do you think that gays should be able to marry then? bc isn't marriage itself religious too?
for me-- i'm not sure what my take is on gays. i definitely am not against civil union or marriage, but at the same time i'm not sure if i accept marriage wholeheartedly.
i have a blog too but i never use it~ haha
Well, having read your entire post, I have to say that I completely agree. I really don't see a reason why the topic of gay marriage is still so controversial up until today. I feel like people need to realize and acknowledge that our society is constantly changing and adapting to new conditions and customs. I understand that the church is in a constant battle to uphold the Bible, but there is a reason for the separation of church and state. I really think that the two need to be separated in order for laws to remain unbiased and not just another way to impose religious beliefs of morality onto others. I personally am not a religious person, which may be the reason I argue for the legalization of gay marriage, but I can honestly say that if you were to examine the progression of our nation over the course of the past few centuries, you would realize that things have changed. What religions preached back then is very different than what is preached now. The same goes for government. Both cannot rely on cut and dry laws because our society falls into all shades of grey in between the two extremes. Both institutions are ever-changing and have adapted, over time, to societal changes. Like Jon stated regarding laws against envy and lying, it may have existed back in the day, but to enforce them today would be a laughing matter as the entire nation would be behind bars. I've spoken briefly with someone before about the reasons why religion is so fundamentally against gay marriage. The answer was simple: their purpose was to spread their faith. If a person was doing something that went strictly against the Bible, you, as a faithful Christian, could not let them make that mistake. It is every Christians job to do all that they possibly can to save someone. And for that reason, they cannot allow gay marriage to pass into law. If they were to do so, rather than discouraging their acts and aiding in their "rehabilitation", Christians would be allowing people to make the "wrong" decisions. Now that viewpoint may not speak for all Christians, but I can see where the disagreement between supporters and non-supporters would stem from. Supporters of same sex marriage are asking non-supporters to give up their fundamental promise to God. I don't think that this disagreement will ever come to a compromise, but I do believe that gay marriage will eventually be passed. The majority of voters against gay marriage are of an older generation where homosexuality was an extreme taboo in society. The new generation of voters have become far more exposed to the ideas of homosexuality. We learn about it in school, we see it in the media, and encounter homosexuals in our everyday lives. The gay population is slowly becoming assimilated into today's society, and I think it's inevitable that with time, they will be accepted as a part of the norm. It wasn't all that long ago when homosexuality was actually categorized as a mental illness by the mental institutions. We've already come a long way in such a short period of time. I'm not here to argue whether homosexuality is morally right or wrong, but to simply say that it is going to exist. It's too big a movement to just stamp out. And as our society continues to move towards further progression and broader ideas and beliefs, it's inevitable that homosexuality will soon be one of the issues that become adopted into a part of our society.
Hey Jon! I'm impressed by how thought out and thorough this is; it leaves me with 2 questions though.
The Stupid One: Who came up with "There are three possible reasons for wanting to make something illegal: 3rd party harms, paternalism, and moral repugnance?" Sounds legit, but that's a huge claim. Is it totally accepted?
The Less Stupid One: This post makes a persuasive, effective argument for gay rights, but doesn't really address the issue of what to call it, civil unions or marriages. I've personally gone back and forth on this, and it'd be interesting to hear your thoughts--while I agree with your presumed view that marriage goes beyond fertile heterosexual couples, it's also relevant that the historical idea of marriage 1) is partially rooted in religious doctrines and 2) heterosexual.
Matt,
Thanks for reading. The point about there being three justifications is an empirical observation I made about where laws come from: If we point to a specific law and ask, "Why is this a law?" the easy might be, "Because people in the democracy wanted it to be." And then if we ask, "Well why did they want it to be?" that's where I arrived at my three justifications.
I agree that this might sound like a big claim, but I think in context of my argument it's fair. (It would have been fishy had I had listed out potential justifications, called that list comprehensive, and then said, "Since none of these apply against gay marriage, banning it is illegitimate.") But I think I fairly evaluated the merits of same-sex marriage on two potential bases--3rd party harms and personal morality--and in doing so covered most if not all of the best reasons why critics of gay marriage want it illegal.
Regarding your second point: On principle, I think the government should sanction only civil unions to prevent conflation with unnecessary religiosity. (But who could have foreseen the gay rights movement 200 years ago?) In practice, however, there would probably be some negative consequences of abandoning government-sanctioned marriage (gays feeling discriminated against because their union can't be called "marriage" while straight unions previously could, and backlash by straight people against gays for having their marriages reduced to mere civil unions). The point about the definition of marriage necessarily being heterosexual is a good one; I'd say that language and institutions can evolve with society's standards in the same way that the definition of "person" has evolved to include blacks.
Jon. Hooked onto your blog via your email. My voice is clearly a minority here as I would be stereotypically considered part of your "religious right" (that being said, I am considerably more liberal on various areas than other Christians though I find my views consistent with the teachings of Jesus). Clearly, by my proclamation that I am a Christian you know where I stand on the issue of homosexuality. Let me make it clear that homosexuality is the main issue in my opinion - the fact that homosexuals desire to be married seems simply a corollary of the fact that there are homosexuals in relationships with one another. However, I do not feel a need to debate that issue here at this time. There are, however, a couple of things I wish to question:
1. Concerning simply your government philosophy. It seems quite Hobbesian This could be simply due to your use of language such as "sovereign power." As the foundational political philosophy follows more closely in the footsteps of Locke (who clearly parallels Hobbes in certain areas) it seems important to note that that power is derived from the individuals who are a part of the civil government. Perhaps a related question is then, what is the link between government and the people and to what extent should the majority of the people's desires be legistlated? This could quite clearly constitute another post or even a series.
2. My other question is on what basis do you assume that Christians are simply repulsed by homosexuality and do not legitimately care about the children (this was a parenthetical claim that you made)? I don't see the grounds for such a comment or view; what's interesting to me is that the 'Christian church', particularly certain denominations is struggling with to what extent to EMBRACE homosexuality. Hence there are now homosexual Episcopelian leaders. My personal philosophy lies along the lines of loving the person though not agreeing or loving their actions. Neither of these things seem to represent a simple repulsion due to homosexuality.
My apologies for the lengthy response. But just some thoughts from the "other side."
-Matt Timms
I know I just left a lengthy comment but realized I had not expressed one key thought.
I feel that you incorrectly conflated the concepts of legislating morality and legislating religion.
I agree that the latter is inappropriate. The sad reality is that a theocracy, due to man's corruptibility will always collapse (though interestingly from a Biblical viewpoint the theocracy with either God as the head is envisioned as the ultimate eschatological paradise). Thus I agree that we should not legislate religion.
However that said, legislating religion is fundamentally different than legislating morality. Your discussion of 3rd party harms is quite understandable except for one missing link: namely, why is it bad for something to hurt another person? If morality is entirely separated from the question, then indeed, 3rd party harms also need to be ruled out (something which you seem not willing to do). Perhaps this comes simply from my misunderstanding of what you mean by morality, if so I'm willing to stand corrected. :)
-Matt
Hi Matt! It's great to hear from you, and I'm really glad that you commented because I was hoping for someone to present the other side of the issue; you did a great job. I'll give my responses to each of your 3 points, in order.
1. Shouldn't the government reflect the desires of the people?
I agree entirely, and I should have been clearer on this. I think simply that people shouldn't vote against gay marriage, not that the government (or some other body) should impose its superior "correct" view on the people and override their democratic right to enact law.
2. Why do you assume Christians who argue about gays' kids are being disingenuous?
I simply find the claim regarding children's welfare so implausible that advocates of this argument probably don't believe it themselves (in which case I wish they'd just be honest about why they really think it should be illegal). I'm not saying all Christians are being dishonest, just the ones who claim to be worried about children when any reasonable person knows this is a terrible argument. So many people, when asked why they're against gay marriage, try to use this argument first because they think 3rd party harms is a stronger justification for law than moral repugnance, when in reality their true aversion stems from morality/religion.
3. While legislating religion is bad, legislating morality is okay. In fact, the 3rd party harms argument rests on morality.
The only people I know of who think homosexuality is immoral are those who believe so because of Biblical doctrine. So I think it's hard to say homosexuality is immoral independently of religion, in which case legislating against homosexual practices is really legislating based on religion.
You make a good point in recognizing the moral element of the 3rd party harms justification. In doing so, you argue that all law is based on morality. The problem is that there's a fundamental tension between legislating morality and preserving freedom, because enforcing morality is necessarily a deprivation of freedom to act against that moral tenet. If you accept that a democratic, pluralistic country like the US ought to value freedom as its fundamental value (rather than morality), then you can derive justifications for laws against things like murder or theft independently of morality: these crimes cause real 3rd party harms (or 1st party harms in the case of paternalistic laws) that threaten the autonomy of their victims. Since freedom is the core value of our country, laws protecting against threats to freedom are justified. Same-sex marriage, however, doesn't endanger the freedom of anyone, while laws banning same-sex marriage are a deprivation of freedom. Under this rationale, gay marriage should be legal.
I admit that this reasoning sounds a little libertarian (a reflection of my own libertarian leanings), but I think it's a philosophically sound argument. If you truly believe that a government should value tradition and morality more than freedom, then you don't have to buy my analysis in the last paragraph; in that case we fundamentally disagree on what kind of country ours should be.
Jon,
I still do not quite understand your assumption in answer to my second comment. While I am no expert I could potentially foresee quite serious issues for a child raised in by homosexual parents (such as gender identity) - of course, this could be way off base.
However, I want to address this third point and clarify what both you and I are saying. What I am not saying is that all law is based on morality - that's a naive statement that is immediately disproved by something as basic as a speed limit. What you seem to be saying in reaction to my argument that 3rd party harms inherently relies on morality is that freedom is the ultimate measure. But even if we consider freedom to be a right that man naturally possesses what makes it wrong to take away someone's right? On what grounds, simply based on the idea that man has the right to freedom, can you say it's wrong for me to take away another's right? You simply cannot. There must be something inherently wrong about taking away another's right, in this case, their freedom.
There's my viewpoint, take it or leave it (most likely leave it I expect).
It's a lot of fun dialoging with you - look forward to more.
Matt
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