7 Arguments for Gay Marriage

The August 4 landmark ruling striking down Proposition 8 as unconstitutional in Federal court is just the first act of the legal drama yet to come on the issue of gay marriage. Federal court Judge Vaughan Walker declared that “the ballot initiative violated the Constitution’s due process clause and its guarantee of equal treatment”. At the heart of Walker’s decision was his conclusion that there exists no rational basis to exclude gays and lesbians from the institution of marriage.

Like any juicy political drama, this ruling was bound to produce some angry heckling from the crowd; Minnesota Rep. Michele Bachman criticized Judge Walker’s ruling, stating that it was yet another case of a “progressive activist judges who issue their personal moral pronouncements under the guise of constitutional law.” Funny that the term “activist judge” doesn’t apply in the case of Citizens United v. FEC case, which overturned decades of financial regulatory legislation—but that’s another story.

Aside from the beltway, the issue of gay marriage seems to be one in which everybody has an opinion—and a strong one. It is likely true that gay marriage is the civil rights issue of this generation, and in the spirit of hearty debate, I took to the internet to find out what people thought about the issue.

Of these conversations, I charted approximately seven arguments in opposition of Gay Marriage. Doubtlessly this list is not exhaustive, but these seven seemed to sum up most of the opposition to the issue I have heard thus far. Here are these arguments and my thoughts in response…

The “Will of the People” Argument

“The ban is the will of the people. No judge should disrespect the will of the people.”

While such a claim seems easy to defend, given its stalwart support for the democratic process, I think it misses an integral component of the ideological foundation of this country.

Going back to Immanuel Kant’s conception of inherent human worth, as every being capable of rational thought is an “end-in-itself”, and its influence on the classical Liberal tradition of natural rights, such as are imagined by John Locke, reinforced by philosophers like J.S. Mill and codified into law by the Founding Fathers, there are certain properties, which we refer to as rights that inhere in any human being.

These rights, which society exists to safeguard, cannot rightly be taken away regardless of whether such abridgment is the will of the people. This means that even if everyone in the country voted to mandate that I never speak again, this overwhelming majority would lack the authority to stifle my inherent right to free speech.

Judging by the fact that the law and our Constitution mandates that all people are born equal, insofar as it is illegitimate to discriminate based on one’s non morally relevant characteristics (properties that are not chosen, “accidents” of birth—race, parentage, sex, etc), and that there doesn’t exist any compelling legal reason why sexual orientation should elicit differential treatment under the law, I would argue that the rights of homosexuals should legally be immune from the decisions of the will of the people.

Ted Olson, one of the attorneys who won the momentous victory overturning Proposition 8 stated this case well. On Fox News Sunday, challenged as to why the people of California shouldn’t have the ability to define marriage, Olson responded, “Would you like Fox’s right to free press put up to a vote?…These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights.”

The “Government Has No Business Meddling with Religion” Argument

Turning to a different conversation thread, one member of the online community presented an argument that was quite apt—that government simply has no business getting involved in marriage: “Marriage is an institution of the church; therefore, it is immune from being controlled by the state. A state cannot legalize marriage between homosexuals… Homosexuals can have their own private civil unions, but public displays of marriage are only reserved for heterosexuals in the house of God.”

I agree that religious matters are beyond the purview of the state, and to compromise these borders threatens the separation of Church and State. However, as things stand now, the State does recognize marriage—that is, one can be married within a religion, and the state will recognize it as a marriage per se, not as a civil union. The logical inconsistency here is that the State recognizes the concept of “marriage” in the first place. If we want to hold true to the separation, the State shouldn’t recognize marriage at all; if people get married in a place of religious worship, they should be “married” within their faith, based on its theology, but in the eyes of the State, they should be recognized not as “married” but rather “civilly-unioned”.

The fact that the State recognizes this category means that it is privileging religion, as the State then codifies these religious dictates into law. I suppose this means that properly speaking, I’m against state-recognized gay marriage. But it also means I’m against state recognition of all marriage.

By the end of that conversation, I knew that my interlocutor and I would not see eye-to-eye—there was just a bit too much fire and brimstone clogging up the debate

The “Gay Marriage Harms Society” Argument

I then moved on to address another argument—that gay marriage is detrimental to society in that it doesn’t produce the necessary social benefits of heterosexual marriage, “namely the procreation of children raised to maintain life through the future… Homosexuality/Lesbianism does not contribute to the highest and best of community life. They breed all manner of disease potential including deviate [sic] behavior and mental illness…”

Aside from the blatantly incorrect claims about homosexuality and its proclivity toward spreading disease and illness, I tried to address what I thought was an argument that rested on several invalid conclusions.

Firstly, if traditional marriage’s sole purpose and the reason it deserves special status under the law is that it allows for procreation, then heterosexual couples with no offspring, don’t deserve the same protection as married couples with children. Is this a conclusion society willing to support?

Secondly, regarding the “dysfunctional” nature of homosexual couplehood, it is disquieting to consider that divorce rates in this country are staggeringly high; an average of 41% of first time marriages and an even greater percentage of second and third marriages end in divorce. If one considers divorce to be a dysfunction of marriage, then heterosexual marriages quite likely to be dysfunctional. However, we do not take into account this potentiality for dysfunction when agreeing as a society to sanction heterosexual marriage. Furthermore, when people get divorced, the law does not deem them as co-participants in an act of social dysfunction, and none of their rights are abridged. Society even allows divorcees to marry again despite their proven negative track record. Therefore, on what basis other than a double standard can one then account for the claim that homosexual marriage should not be allowed because of its dysfunctionality?

The Special Privileges Argument

But in terms of double-standards, the next argument takes the cake. It actually would have been comical if it weren’t people’s rights we were talking about: “They have equal treatment already. Any man can marry anyone provided that person is:
1. An unmarried woman, and
2. Has reached the age of maturity, or
3. Has parental consent.
No man can marry anyone who does not meet those criteria. That means everyone had the same rights…Now, a judge has decided some people need special privileges.”

Thinking about the “special privileges” claim, I had to respond to the sheer unfairness of this argument.  How can it be that homosexuals receive special privileges that heterosexuals do not if the former aren’t allowed to marry the consenting adult of their choice they choose while the latter are?

This argument is like saying, in a country which mandates a state-religion, “everybody has the same rights because everybody has the right to be Christian and nobody has the right to be Jewish, Muslim, Hindu, etc.” For a member of these other religions, being able to practice one’s faith in this hypothetical country is not a “special privilege,” it’s a matter of equality under the law. And that’s where that conversation ended.

The “Unnatural” Argument

But no debate about homosexuality and gay marriage would be complete without the requisite “it’s just not natural” argument, and that’s exactly where I turned next.

The problem with the “no parallel in nature” argument, is that it’s simply wrong, and those who make this claim should  consider the work of Dr. Joan Roughgarden, a biologist at Stanford University, who states that more than 300 vertebrate species have been found to practice homosexuality.

But to take the argument further, I don’t think people who make the “unnatural” argument quite realize its logical conclusion. If we establish a standard by which something is judged as acceptable based on whether it is found in nature, then anything not found in nature is thus rendered unacceptable. This means that the keyboard I’m typing on, the computer I’m working on, the chair I’m sitting on, the desk I’m occupying, the building I’m located it, the car I use to get to work in, the street I drive on are all unacceptable. All of a sudden, a whole host of human behavioral patterns that aren’t mirrored in nature become unacceptable—from dinner parties to international diplomacy. Even the sedentist agricultural foundation for modern civilization is called into question.  At this point, the distinction between “natural” and “unnatural” seems to have no meaning, for it doesn’t include a mechanism for adequately determining to what extent humanity is part of nature and at what point our higher cognitive capabilities separate us from the natural world. The conclusion to this absurd line of reasoning is simply that using nature as our guide for what is acceptable automatically invalidates almost every single part of the human experience.

The “States Rights” Argument

One of the most challenging arguments I heard that day was the claim that the recent ruling infringes on States Rights, and represents a wider threat to the separation of powers by augmenting the scope of the Federal Government; This is an issue for each state to decide. States are not political subdivisions of some Empire. This is a Republic with a federal government having limited enumerated powers, not an Empire. Each state has its own requirements for marriage and a marriage license, just like driver’s licenses, business licenses, and professional licenses. The people of each state shall decide for themselves.” Thus, by extension, since the definition of marriage is not an enumerated power of the Federal Government, it is a power reserved for the states to decide individually (see: 10th Amendment and Federalist #45).

Aside from the fact that, the legal category of “marriage” is actually a cross-state, federally recognized designation, accepted by each state regardless of the location of its inception, while civil unions are not federal designations recognized outside of the state of their sanction, I think this argument rests on one glaringly incorrect premise—this case has nothing to do with the Federal Government. This argument omits the fact that the Federal Courts are part of the Judicial branch.

States rights rests on a blanket clause vesting all rights not specifically granted to the Federal Government with the States or the People. However, even granted this blanket clause, there are certain acts and decisions that neither the Federal Government nor the States have the authority over—our fundamental rights.

The point is not that the Federal government has legitimate authority to make decisions concerning our rights, but neither do the states—that power rests with no branch of the government. The very fact that the Judicial branch can overrule an Executive or Legislative act pertaining to our rights (as per Marbury v. Madison) means that they are essentially outside the sphere of any authority to abridge. This is not a case of the Federal government overstepping its powers, this is a case of a branch of government acting precisely within its sphere of authority.

The “If We Allow Gay Marriage, What Next…” Argument

And finally the coup de grace, the “slippery slope”—absurd by nature yet extremely difficult to dismantle logically.

Using your logic, are you going to support polygamy?
A man and two women?
Two men and a woman?
Three men?
Four women?
Or any combination?

Where do we draw the line? There isn’t an easy answer to this challenge. The slippery slope argument is so powerful because it’s often impossible to find adequate reasoning to draw a resolute line within a subtle spectrum. But it’s also the reason why the slippery slope argument is misleading and fallacious.

In essence, the slippery slope proposes that any change in the “traditional” structure marriage will result in the “deterioration of all other marital restrictions”. If this were the case, incestuous or polygamous marriages, as well as a whole host of other deviant relationships such as necrophilia are only a hop skip and a jump away. (I can just imagine closet necrophiliacs anxiously waiting for the legalization of gay marriage so they can start raiding city morgues). Once we open the floodgates, there will simply be “no restrictions on the form or function of marriage.”
The problem with this is argument, according to Dahlia Lithwick, is that it is intellectually dishonest and its logical conclusion “implies that no social reforms should ever be undertaken”. But if cases in which countries have legalized gay marriage are any guide, there is no necessary link between it and all the evils of Pandora’s Box; “Countries such as Denmark, Sweden, Canada and the Netherlands have all legalized same-sex unions without legalizing polygamous or incestuous ones.”

Why? slippery slope arguments assume that one thing necessarily leads to another—and another, and another, until before we know it, we’re in strange and terrible territory. It thus concludes that, to avoid a negative outcome, we mustn’t undertake the action in question. The fallacy in this assumption is that there is no necessary connection between the steps—restraint is possible,

An epistemological problem with slippery slope objections to gay marriage is that statements such as “gay marriage will lead to bigamy, polygamy, incest, adultery, bestiality…” are projections into an “unknowable future”. Asking proponents of gay marriage to prove these marriages won’t be bad for kids/families is equivalent to demanding one prove a negative—a logically impossible task. Ultimately, “The law cannot know the future social effects of legalizing gay marriage; we can only determine whether it is fundamentally unfair to bar a whole class of citizens from a privilege constitutionally afforded the rest of us.”

Thus, we must recognize that slippery slopes are metaphorical at best, and should not be heeded as a necessary continuum of social change. It is, after all, possible to critique and evaluate each step on the slope by its own merits.

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A thought on Capitalism and consistency

 

Liberalism—a term that has taken quite a winding path in its usage and definition. I would define classical liberalism as closely aligned with modern day libertarianism. Classical liberalism, in its advocacy of individual rights, the free market, and a more egalitarian political order puts itself at odds with classic conservatism, an ideology wary of radical social change and distrustful of an unchecked economic order, and suspect systems of government that devalue political arête. Classic conservatism is at best a reticent bedfellow of democracy; government is best left in the hands of excellent individuals—those who have devoted their energies towards studying the art of politics(the liberal arts, funnily enough). On the other hand, the average person, has had neither the relevant education, nor any exposure to the classics, nor the guiding experience of august, elder statesmen. Hoi Polloi are simply not fit to steer the ship of state; best leave that to those who can do the finest job. 

Let’s face it, whether you’re a democrat or a republican, a liberal or a conservative; if you’re American, you’re for government for the people, by the people. Both political parties are engaged in an endless tussle to assert their democraticness—that they are for the people; real, everyday Americans, not the good ol’ boy, business as usual, inside the beltway, and all other overused and asinine euphemisms for the powers that be. Modern day liberals show their populism by advocating for social programs, such as healthcare reform, poverty initiatives, etc. as well as human rights, exemplified by left-leaning organizations like the ACLU. Modern day conservatives do so in both similar and different ways; for those in the libertarian camp, individual civil liberties are also a high priority, but libertarians are certainly not the dominant sector of influential conservatives today. Mostly, conservative populism is found in its rhetoric—politicians like George W. Bush assert their “everyman” status by continually reminding us that they were C students. Sarah Palin is highly adept at painting conservative ideology as the heart of “real” America—hard working, small town people, guided by religious values and wary of big city intellectuals and big government bureaucrats. Both political camps today have this similar thread in common; whether or not they practice what they preach in smoky backroom dealings, both profess that government is ultimately the provenance of the people. Both thus reject the classical idea of political arête—that those who should lead are only those elite ones who can, by virtue of their excellence do the best job. 

Given this context, I find the modern conservative position on laissez-faire capitalism somewhat contradictory, for what does the advocate of unfettered capitalism profess but that the financial system should be left to those with the talent, the experience, the excellence—the arête; that the economy should be left to those who can do the best job. How does this shed a contradictory light on conservatism specifically? In some ways, modern day liberals adhere to this ideology and in some ways they renounce it. Liberals are advocates of the free market, but to a much larger extent than conservatives, government regulation. Why is it, they ask, that every other arena in society should have laws and regulations governing its power and scope except for the economy? What if powerful economic forces come into conflict with the environment? What if globalizing forces outsource American jobs and dodge American taxes? What if corporate forces lower the living standards of their workers? What if gargantuan financial institutions play no-holds-barred Texas hold ‘em with our 401ks? To some extent, liberals embody the democratic ideal by demanding that government by the people have ultimate authority over powerful social actors—that the body politic reign in the economy if it grows too unwieldy. Thus, our elected officials and their appointees have the mandate to regulate the economy in the public interest. Hopefully they do so. This model of governance seems to embody an understanding that unfettered capitalism in its modern day form is not naturally democratic, for how can the people exercise power over the multi-national corporation with all its financial power and political influence? In the absence of government regulation—an institution which is, though convolutedly, ultimately accountable to the populace—powerful economic forces with no national ties or accountability to the communities of its clientele operate with impunity. If we the populace doesn’t have control of these economic forces, these economic forces will determine the direction of important parts of our lives, without our consent, ability to protest, and even awareness. Thus the modern day liberal value of government regulation of corporations and the financial system represents a democratization of the economy, for if the government is ultimately accountable to the people, and not just some of the people, namely the elite, excellent individuals, but all the people, and if our government exercises control over the economy, then we will have a social order that is true to its egalitarian principles. 

In some ways, modern day conservatives embody this ideal as well. When the Sarah Palins and George W. Bushes of the world shout their rallying cry to take government hands off the economy and instead leave it in the hands of those that are best fit to lead it, they are talking about the people—the entrepreneur, the small businessperson, the individual innovator. In this sense, the ideal of leaving the economy to only those excellent individuals rings true to democratic principle, for this arête which is not a fancy education or access to elite outlets of power, but rather nothing else than individual self interest—and who is a better judge of one’s self interest than every man himself? 

But this in nothing new. Then how is it that modern day conservative ideology is inconsistent regarding the economy and its actors? When conservatives oppose regulations such as those Obama recently proposed mandating that Banks cannot invest in anything not expressly in the interest of their clients, or demanding stricter rules on risky investments, they are essentially wresting control of powerful social forces out of the hands of the people, and into the hands of a few privileged individuals vested with an obscene amount of power. Funny, a conservative would probably see in my last sentence “the people” as the CEO and the “individuals vested with obscene amounts of power” as the Fed and Obama’s economic team. But in response I ask these questions—to whom are the CEOs accountable? Are they elected? Can we choose not to elect them if we disagree with their politics/ideologies/motivations/actions, etc? Can we impeach them? What if they cause harm to our communities? What authority can chastise them for such actions except the government? Given that the powers of a corporation represent such a monumental externality—that is, their decisions affect many not directly involved in their decisions/transactions (think of what would happen to the country if Nokia left Finland)—and given that conservatives continually oppose reforms that grant the government (a.k.a. the people) power over these forces, is it not safe to ask whether conservatives of this ilk have forgotten their egalitarian beginnings? Have they crowned a new class of elite, excellent individuals above the common fray?

Proposition 8: Conservatism coming loose at the seams

 

As proponents of Proposition 8 are poised to present their defense in the San Francisco federal courtroom on Monday, I wanted to share some of my thoughts on the matter. 

A central tenet of classical liberalism (or in today’s veritable cornucopia of political labels and identifications—conservatism) holds that the individual should be free from external intrusion. 

“Negative Liberty”; the freedom from—from the demands of government or of society, as long as these demands fall outside of the individuals direct purview. In fact, a charge oft leveled against modern day liberals is that they are attempting a sort of “social engineering” in which a supposed “authority” dictates what is best for society and imposes its will upon others.  This imposition, according to the classical liberal camp is inherently unjust, for the individual, be it through inalienable rights or intrinsic human dignity should be free of other’s coerced conformity. 

Thus negative freedom acts as a platform for the autonomous individual to choose his own path in life. In fact, the core of liberalism rests entirely on the ideal of individual autonomy, for without this most basic assumption, how can the individual be taken as the primary unit of concern in liberal theory? How else can people make self-interested economic choices or exercise their right to vote? 

Given that this value of liberalism, which provides the intellectual framework behind conservative ideology, how can modern day conservatives justify the position that government can dictate who marries and who doesn’t? Even beyond the simple argument that there should be a separation of church and state, what ammunition do gay marriage opponents have to argue that society or government has the authority to impose such regulations on one’s life choices? Even more so, how can gay marriage opponents, operating within the ideological framework of classic conservatism level such claims without rendering themselves irreconcilably inconsistent? 

Either the individual by right is autonomous and as such the government hasn’t the ethical authority to lay such restrictions, or the individual has only those rights which government grants him. Interestingly, the only way that modern conservatives can argue for banning gay marriage is by renouncing their classic liberal ancestry. 

As of now, opponents of gay marriage make their case on utilitarian grounds; since no strong argument can be made that such an institution actually harms anyone, they argue that it is detrimental to society, leading to “incest, polygamy and sex with children” (http://www.latimes.com/news/local/la-me-prop8-trial24-2010jan24,0,3480322.story) However, classical liberalism singularly renounces such utilitarian calculations on the issue of individual choice. True Liberal society cannot simply vote away my freedom of speech, no matter how harmful my words are. 

Thus anti-gay marriage proponents have an unseen quandary to grapple with. They can win the battle against gay marriage. But the cost is their identity.