Philosophers on the Supreme Court’s Gay Marriage Ruling

Philosophers on the Supreme Court’s Gay Marriage Ruling


On Friday, June 26th, the Supreme Court of the United States announced its ruling in Obergefell v. Hodges, holding that the Fourteenth Amendment of the United States Constitution guarantees the recognition and provision of same-sex marriage. It requires each of the 50 states in the US to issue marriage licenses to same-sex couples seeking them, and to recognize legitimate same-sex marriages  performed in other jurisdictions.

Justice Kennedy, writing for the majority, said in his decision:

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex….

The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. 

The decision is a landmark in the development of the rights and liberties of gay and lesbian people in the US, and is not without its controversy, of course. Many questions have arisen about the reasoning of the majority and that of the dissenting justices, as well as the significance of the decision. To get clearer on some of these issues, I asked several philosophers to contribute some brief remarks on the ruling. They are: Elizabeth Brake (Arizona State), Cheshire Calhoun (Arizona State), Clare Chambers (Cambridge), John Corvino (Wayne State), Brook Sadler (South Florida), Edward Stein (Cardozo), and Kevin Vallier (Bowling Green). I am grateful to them for sharing their thoughts and doing so on such short notice. I’d also like to thank Esa Diaz-Leon for suggesting a group post on this topic.

The idea of the “Philosophers On” series  (this is the third one at Daily Nous; the first was on Rachel Dolezal, the second was on the Charleston Massacre), is to prompt further discussion among philosophers, and also to explore the ways in which philosophers can add, with their characteristically insightful and careful modes of thinking, to the public conversation about current events. Others are, of course, welcome to join the conversation. Additionally, if you come across particularly valuable relevant philosophical commentary elsewhere, please provide a link in the comments.


Elizabeth Brake:

The Supreme Court’s decision deserves celebration. If there is to be a state-recognized and state-regulated institution of marriage, then equal treatment demands that it be extended to gays, lesbians, and bisexuals.  In a context of marriage inequality, this decision is an important statement of legal equality. However, should there be a government-backed institution of marriage in the first place?

A number of philosophers have argued that the state should get out of the marriage business, leaving the celebration of weddings to churches and Vegas chapels, and allowing relationship partners to use the tools available in private contract to create enforceable property agreements.  Some have argued that for the state to support – much less promote, as the U.S. does – an essentially religious or ethical institution is simply illiberal, just as supporting state-run baptisms or bar mitzvahs would be.  Others have argued that the institution bears traces of its patriarchal heritage (in which women were legally subordinate within marriage) and that some provisions of marriage law, in some jurisdictions, facilitate domestic violence.  Still others argue that marriage law wrongly imposes a single template for ‘the good life’ when in fact people seek intimacy in many forms.  The state’s preference for one form of relationship fails to treat citizens in different relationship forms—and with differing ideals of love relationships—evenhandedly.

In my view, the state should recognize marriage relationships, because such recognition serves important functions. Most importantly, it protects and supports certain relationships in which people care for one another.  Such caring relationships are widespread constituents of people’s views of the good life, and they allow citizens to further their life plans in many ways. But not everyone wants, or finds, or idealizes dyadic, sexual, romantic, monogamous love relationships.  People seek and find care and intimacy in many forms.  Two single female friends might cohabit, raising children together, or elderly friends might cohabit, providing mutual care.  Some adults freely choose to enter polyamorous relationships, in which more than two parties share their sexual and emotional lives.  Close, committed friends who share their lives, or small polyamorous groups, can provide the care that some marriages do.

Just as equal treatment demands that same-sex marriage be recognized, it requires that these other committed relationships be eligible for the support and protection which legal marriage provides.  That is, if one of the main rationales for marriage law is the protection of devoted love and family life, love and family should be recognized in all their variety. This is not to say that friendships and polyamory should be styled as marriage: many would not want to be viewed as married, and it is important to keep alternate forms of civil recognition for those who oppose marriage on principle.  However, such relationships deserve equivalent protection to marriages on grounds of equal treatment.  On my view, recognizing and legally protecting the array of relationships in which people live would go a long way towards answering the arguments against legal marriage listed above.

Three caveats should be mentioned.  First, while we are celebrating good marriages, we should recall that marriages can go bad – lethally bad – and that it is important to protect exit options.  Second, the distribution of health benefits through marriage continues to be an injustice. Third, gays, lesbians, bisexuals, and polyamorists have important interests not covered by marriage law – such as protection against discrimination in employment. Marriage equality is an important step forward, but it is only one step towards full equality.


Cheshire Calhoun:

Having just finished reading Justice Kennedy’s majority opinion in Obergefell v. Hodges, and the dissenting opinions by Justices Roberts, Scalia, Thomas, and Alito, I am struck by the unclarity about what marriage is, why it is a fundamental right, and why it is important not to restrict that right to opposite-sex couples. I don’t think that unclarity is local to the Supreme Court; it is endemic to judicial, legislative, and broader cultural reflections on the nature and importance of marriage. Here are four options for why marriage and the right to it is of fundamental importance.

One might think that marriage has some “transcendent” value and meaning. Indeed, Justice Kennedy refers more than once to the transcendent nature of marriage. He notes, for example, that “same-sex couples, too, may aspire to the transcendent purpose of marriage and seek fulfillment in its highest meaning.” But where does that transcendent meaning come from? At one point in time, one might have claimed that marriage is an institution designed by God and its transcendent value thus consists in its sacredness (Kennedy also mentions the sacredness of marriage). To do so now in a Supreme Court decision quickly raises the concern that Scalia articulates about the limited “we,” namely the nine Supreme Court justices, enforcing this evaluative conception of marriage.

Alternatively, one might think that marriage is fundamental because since ancient times and across cultures societies have recognized some kind of marital arrangement. As Kennedy observes, “the right to marry is fundamental as a matter of history and tradition.” But as many have noted, there have been enormous variations in the socio-historical forms marriage has taken, including patriarchal polygamy and same-sex marriage. The socio-historical prevalence of some form of marriage is not going to be useful for anyone to draw on. And in particular, it doesn’t narrow down the fundamental form of marriage to the one singled out by Kennedy—two-person marriage. Nor is it obvious why marital arrangements in other time periods, countries, and cultures, would be relevant to US legal and judicial thinking.

Alternatively, one might think that marriage “is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” As Alito observes, the emphasis in this part of the majority opinion appears to be on the happiness of married individuals—their finding emotional fulfillment, support in times of need, stability in their relationship. As Scalia observes the emphasis is also on their finding other freedoms, such as expression, intimacy, and spirituality. But going this route requires a romantic inflation of what actual marriages deliver, so that an idealized version of marriage replaces the empirical reality of actual marriages, as a ground for claiming that marriage has some fundamental value in human lives. It also requires an implicit deflation of all other forms of human bonding that might supply these same things (and as Scalia notes, if freedom of intimacy is what you want, there are better options).

Finally, one might think that marriage is fundamental simply because we have made it so, and we have made it so for quite a long time, both in our cultural practices and in the ever growing range of rights, benefits, and responsibilities attached to marriage. On this point, Kennedy aptly observes that “the States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.” And when we get down to what the petitioners wanted, it is not access to transcendent meaning, inclusion in a persistent socio-historical practice, or an emotional fulfillment and support, intimacy, spirituality, and so on that they didn’t already have in their relationships. What they wanted were basic state-granted entitlements such as being listed on a partner’s death certificate, being able to jointly adopt, and being able to set up residence in Tennessee without losing their lawful marriage.

There is another sense in which we have made marriage fundamental. We have constructed and deeply bought into an ideology of marriage as a pre-political institution, the sort of human arrangement “without which there would be neither civilization nor progress” (here Justice Kennedy was quoting the 1888Maynard v. Hill decision).  To the extent that we remain in the grip of that ideological construction of marriage as a pre-political institution that provides the indispensable keystone in the arch of civilization, we are also caught in the grip of the idea that only those social kinds who are fit for marriage are the truly essential citizens, since only they make possible the existence and progress of civilization. As I have argued elsewhere, this means that reserving marriage for heterosexuals amounts to reserving for them a unique citizenship status—that of being essential citizens.

Sometimes Supreme Court decisions shed clarifying light. Both Loving v. Virginia and United States v. Windsor did this for our marriage law. Both narrowed in on what was fundamentally wrong about, respectively, laws barring and punishing interracial marriage and the federal Defense of Marriage Act—they were motivated by animus toward a particular social group and had the purpose entrenching inequality. Unfortunately, while the majority opinion in Obergefell v. Hodges has a great deal to say about the demeaning of gays and lesbians, it also swims too much in the muddy waters of our confused thinking about why marriage matters.


Clare Chambers:

If marriage is recognised by the state then justice requires that it be extended to same-sex couples. Anyone who cares about justice should celebrate the end of the ban on same-sex marriage in the USA, and I most certainly do.

But why should marriage be recognised by the state? The values of equality and liberty that lead towards the need to recognise same-sex marriage actually push further: towards the abolition of marriage as a state-recognised institution. Marriage should not be illegal: people should be free to participate in religious or secular marriage ceremonies. But those ceremonies and unions should have no special legal standing.

Ending the state recognition of marriage would mean ending a variety of inequalities connected with the institution. Marriage is historically and traditionally a patriarchal institution, connected with the legal subjection of women. It is still in many places a heterosexist institution. Legal changes dent but do not necessarily destroy those symbolic meanings. And even reformed, equal marriage still entrenches inequality: between the married and the unmarried, and between the children of married and unmarried parents. Unmarried people include those who are single, those who are partnered but do not wish to marry, those who are non-monogamous, those who are divorced, those who are widowed. Why should these people, and their children, be denied the benefits that come with marriage? Those benefits vary from state to state, but may include health insurance, next-of-kinship rights, immigration rights, visitation rights, inheritance or other tax relief, and custody of children. Why should only married people be granted these rights?

The state recognition of marriage also violates liberty, since by lending status and significance to marriage the state endorses a particular set of values involved in that ideal. Those values are not neutral values like stability or commitment or care or family or love, since unmarried people can and do instantiate those values in their lives and relationships. Instead the values unique to marriage are substantive and value-laden, subject to reasonable disagreement.

I don’t have the space here to set out how personal relationships would be regulated so as to secure justice in the marriage-free state, so a thought experiment will have to suffice. Ask yourself: what would be the ideally-just regulations to deal with unmarried people in the current, marriage-based regime? What rights and duties should apply to unmarried cohabitants, property-holders, parents, carers, dependents, people who wish to designate each other next-of-kin? Would rights and duties be tied to formal agreement, to length of relationship, to function, to finances? Whatever your answer, why not apply your ideal regulations to everyone, regardless of marital status? Why not end the state recognition of marriage?


John Corvino:

Like many, I’m still letting Obergefell sink in—not just the decision itself, but also the dramatic changes it signals. Had you told me 25 years ago, when I started graduate school, that the White House would someday be lit up in rainbow colors to celebrate the Supreme Court’s granting same-sex couples the right to marry in all 50 states, I would have retorted “Not in my lifetime.” Richard Mohr’s Gays/Justice, published in 1988, was then revolutionary. In 1992, when I first presented the lecture “What’s Morally Wrong with Homosexuality?” (which later became the article “Why Shouldn’t Tommy and Jim Have Sex?” and more recently a book), 57% of Americans denied that homosexuality was an “acceptable alternative lifestyle.” Gallup didn’t poll on marriage until 1996: 27% in favor, 68% opposed. We’ve come a long way in a short time—thanks in part to pioneers like Mohr, as well as other thoughtful philosophers who explored these issues in their publications and their classrooms.

Two things strike me about the opinions on first read: one personal, and one philosophical. Personally, I’m moved by the absence of anti-gay disgust in the dissents—a marked contrast with Bowers, which was still fresh back when I started grad school. Roberts gives same-sex couples and their allies explicit permission to celebrate the result, even as he disagrees with it on strict-constructionist grounds; Scalia announces that “The substance of today’s decree is not of immense personal importance to me.” One could not imagine such assurances from Byron White or Warren Burger.

Philosophically, I’m struck by how important definitional questions are to the disagreement between the majority and the dissenters. Does prohibiting same-sex marriage interfere with gay persons’ liberty, as the majority argues, or does it simply decline to grant them certain privileges and benefits? If the latter, does the prohibition treat them unequally under the law, by granting marriage to some couples but not others without sufficient reason for the distinction? Well, that depends on what marriage is. If marriage by definition requires (at least) one man and one woman, then “same-sex marriage” involves a category mistake—and one cannot violate the 14th Amendment simply by declining to participate in a category mistake. But this argument, which underlies all four dissents, assumes that the legal privileges and benefits attached to marriage must track this “natural,” pre-legal, essentially heterosexual institution. And that assumption, in turn, raises difficult questions in social and political philosophy, not to mention the metaphysics of marriage.


Brook Sadler:

In granting same-sex couples the right to marry, the Supreme Court’s ruling in Obergefell v. Hodges has achieved a laudable end: justice for gays and lesbians who have wrongly been excluded from access to important legal rights and benefits open to heterosexual couples. This is a result worth celebrating. However, some of the Court’s reasoning and rhetoric in support of this decision is philosophically and politically dubious.

The Obergefell ruling grants gay and lesbian couples access to the full and extensive panoply of legal rights and responsibilities (and economic and social benefits) that accompany marital status. But should marital status be the mechanism through which such rights and benefits are conferred? Is there a legitimate State interest in promoting marriages, which would justify excluding unmarried persons from access to those rights and benefits? The Court assumes, with meager argument, that the State does have a legitimate interest in promoting marriage. Citing Confucius and Cicero, the Court suggests that marriage is fundamental to civil society.  The Court’s clearest message regarding the importance of marriage to the State is simply that marriage has endured as an institution for millennia. But the simple longevity of an institution or social practice does not offer much to recommend it: Slavery, sex trafficking, and prostitution also have an ancient pedigree and have persisted for centuries.

By upholding the central importance of marriage to society, the Court entrenches an institution of dubious legal and political value. Focusing on the value of marriage diverts our attention from the importance of creating just laws and social supports for all citizens, regardless of marital status. As long as marriage secures access to healthcare, social security, and tax benefits (to name a few), marriage will be socially and economically compulsory for many, especially for women.

Without equal pay, adequate and affordable childcare and early-childhood education, or guaranteed healthcare for women or children, American women enter (and exit) marriage on unequal economic footing with their husbands. As long as women’s material security is tied to marriage, women are not truly free to choose marriage. Marriage remains a linchpin in patriarchy, sustaining conditions in which (heterosexual) women are materially dependent upon men. Instead of insisting upon citizens’ right to marry, we should create conditions in which citizens have the freedom not to marryand in which the welfare of children is not contingent upon the marital status of their parents.

The majority opinion in Obergefell states: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples” (p. 15). This is unsubstantiated rhetoric. It promotes the superiority of marriage and the nuclear family to alternative modes of childrearing (whether by single parents or extended families); such rhetoric itself produces the stigma it describes and obscures the central importance of economic and social conditions to the welfare of children.

I have suggested that marriage has dubious legal and political value today. It diverts our attention from the need to establish just social conditions for all, regardless of marital status; it sustains patriarchy; and it is too-easily assimilated to troubling rhetoric that enshrines the nuclear family. But, to deny that civil marriage is of fundamental importance to civil society says nothing about its value as a part of religious practices. It is also consistent with recognizing that marriage is a morally important relationship and one that may provide significant psychological and personal benefits. But even here, the Court over-reaches with its rhetoric; the unmarried are not, as it suggests, “condemned to live in loneliness” (p. 28). As many people can attest, regardless of their sexual orientation, civil marriage is not the only relationship that alleviates loneliness. Nor is it strictly “essential to our most profound hopes and aspirations” (p. 3).  Although marriage may be of profound value for some, it is not essential to human life, and for much of its history, it has functioned as a profound limitation in the lives of women. A more just political order will separate access to basic rights from erotic affiliation and secure the welfare of all citizens regardless of their familial arrangements.


Edward Stein:

The Surprising Revival of the Definitional Argument Against Same-Sex Marriage

While the Supreme Court decision in Obergefell represents a dramatic development for LGBTQ rights in the United States, this landmark case was not unanimous, in contrast to Loving v. Virginia, the 1967 decision that ruled laws prohibiting interracial marriage were unconstitutional.  It is worth considering why Obergefell was a five-to-four decision.  While both the majority and dissent agree that the institution of marriage has changed dramatically since this country’s founding,  only the dissenters see the different-sex aspect of marriage as the unchangeable  essence of marriage.

In 1973, in one of the first marriage-equality cases in the United States, the Supreme Court of Kentucky said that the two female plaintiffs who filed suit against the state seeking to marry each other were:

prevented from marrying, not by the statutes of Kentucky. . . but . . . by their own incapacity of entering into a marriage as that term is defined. . . . [T]he issuance of a marriage license [is not warranted] because what they propose is not a marriage. [Jones v. Hallahan, 501 S.W.2d 588, 588-90 (Ky. 1973)]

Like the judges who heard the gay marriage cases of the 1970s, the Obergefell dissenters draw on dictionaries to show that “the core structure of marriage [is] the union between a man and a woman.”  This definition-based argument is incredibly thin—it fails to explain why the gender difference of the parties is a necessary feature of marriage.  One simply can’t get this kind of legal/ethical justification from a dictionary.  Justice Kennedy and the majority, along with most judges hearing marriage equality cases in the twenty-first century, have wisely rejected this argument and embraced a more dynamic view of both marriage and its nature in both law and society.  The dissent’s embrace of the definitional argument is at the core of what is wrong with its approach to same-sex marriage.


Kevin Vallier:

The United States has reached a new legal settlement: gays and lesbians may legally marry, and same-sex married couples are entitled to all the rights and benefits of heterosexual married couples. It is hard to deny that this is step towards justice. But for the new legal regime to be stable and enduring, we are now faced with the difficult challenge of determining how to treat persons of faith who reject same-sex marriage and homosexual sex as immoral and sinful.

At present, many people of faith merely ask to be able to live a life in accordance with their moral and religious beliefs (reflect on the measured response of the Union of Orthodox Jewish Congregations of America). Few would deny them that liberty in principle. But to what extent should people of faith be allowed to shape their institutions around their beliefs? Clearly the state should not attempt to alter church doctrine or ordination practices, nor should the state compel clergy to perform same-sex weddings against their will. But how much further should religious liberty reach?

Consider: Bob Jones University did not admit African-American students until 1971, and continued to discourage interracial dating for many years thereafter. In response, the IRS removed the university’s tax exemption in 1976 (extending retroactively to 1970). Their objections (based on the religion clauses in the first amendment) made their way up to the Supreme Court in 1982 and, in 1983, Bob Jones lost. They were not deterred. The university continued prohibiting interracial dating, paying a million dollars in back taxes. Bob Jones didn’t officially drop the rule until George W. Bush spoke there in 2000, which led to major public criticism.

Many readers will think that the government has the authority, even the duty, to deny Bob Jones tax exempt status, given their constant, aggressive attempts to diminish the dignity of African-Americans. In this case, I agree.

But here’s the tricky philosophical question: in the name of moral symmetry between discrimination based on race and sexual orientation, should the IRS pursue similar strategies with religious institutions that prohibit same-sex dating, teach that homosexual sex is immoral, and regard same-sex marriage as a theological absurdity? To put it starkly: should the IRS strip public funding and tax exempt status from every non-compliant theologically orthodox school and university in the United States (not to mention thousands of non-educational organizations)? If you think this goes too far, what’s your reason?

I think the federal government should treat the two cases differently for both principled and pragmatic reasons. If you think the same treatment is appropriate, I invite you to imagine hundreds of thousands of sincere, informed Muslims, Jews and Christians engaged in civil disobedience, quickly converting their (potentially alterable) opposition to same-sex marriage into the mark of a martyr. A free, egalitarian and pluralistic society can find a better solution. But what is the most philosophically defensible and pragmatically effective alternative to the Bob Jones treatment?


Thanks again to the contributors to this post. As a bonus, here’s John Corvino’s short video “The Definition of Marriage”:


(top image: photo of the Stonewall Riots, 1969, modified)

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Pete
Pete
6 years ago

Wonderful to see the wide range of views presented here, some of which side with the dissenting opinion.

On a serious note, the viewpoints shared above, indicative of the radicalization of the academy, are why many conservatives have such a low few of the humanities in particular and universities in general. As if sexual morality were not already scarce enough on college campus, students have to hear these arbitrary arguments (i.e. they apply, mutatis mutandis, to polygamy and incest as well) as standards of a new morality. I can fully sympathize, though I disagree, with people such as Gov. Walker who wish to eliminate or defund institutions where popular morality is treated indifferently at best.Report

Claire Grant
6 years ago

Many thanks to all those who state here their support for gay marriage. We are in exciting times and it’s nice to have more countries we can now get married in. I really like Cheshire’s thoughtful contribution and am going to enjoy perusing it further. Regarding some of the other contributions I don’t agree that gay marriage, or state regulated marriage in general, is illiberal. A liberal perfectionist can argue that the state ought to regulate marriage for example. To add to the literature, the lovely Les Green (Balliol) has a cracking piece on gay marriage, somewhat Humean. Sending my best wishes to you all from here in Cambridge. Claire GrantReport

Carlos
Carlos
6 years ago

First, why were no proponents of natural marriage asked to contribute to this piece? It would have been great to hear a diversity of thoughts on this matter.

Second, the contributors to this reveal themselves to be much too deep in their ivory towers and so fail to see what is commonsensical: the only reason the state has been involved in marriage in the first place is because a man and a woman beget children. Once you make “marriage” about recognizing loving commitments between persons or to bestow “dignity” upon them (how the government can ‘bestow dignity’ is still a puzzle), then, as contributors to this piece see more or less clearly, there is no reason for the state to regulate marriage. More than that, there is no remaining reason, in principle, as to why, say, 76 persons who are all in a loving commitment with one another cannot “marry” (though you will hear petty responses to this like “but think of how difficult it would be to file taxes like that!”). No longer does sexual exclusivity or permanence make any sense on this view.

One not invested in an extreme sexual libertinism will tell you that all of this indicates that those who genuinely believe all of this have grossly misidentified what marriage is.Report

Komal
Komal
6 years ago

I am very glad to hear about the SCOTUS decision regarding same-sex marriage. As long as marriage exists, same-sex marriage should exist as well. To oppose gay marriage is to oppose equality between straights and gays.

Regarding the ethics of marriage: I agree with many commentators on this issue that there are certain legal rights that should be independent of marital status, and to which the nature of the partner relationship is irrelevant. These include the right to healthcare, which should be universal. However, in my view there are other legal rights that should be associated with the partner relationship, though not necessarily exclusively. These include joint adoption rights and inheritance rights, which are by their nature limited to some people (e.g. only some people have the right to inherit the property of a particular individual). There needs to be a legal recognition of the partner relationship because of the unique psychological characteristics of such relationships — such as closeness and commitment — and the relevance of those characteristics to certain legal rights.

This legal recognition is compatible with other means of conferring some of those rights and benefits (e.g. a last will and testament in the case of inheritance), so the fact that people might want to allow non-partners to raise a child with them or inherit some of their property, for example, is not a reason not to have the legal recognition. Legal partner status simply involves the automatic conferral of certain rights to partners, which is convenient and not unjust. Marriage is currently the main way the law recognizes someone as a partner, but it is not the only way and AFAIK not the best way. I’m not attached to marriage or its abolition, but just want the law to recognize the partner relationship and give people certain rights accordingly.Report

sin nombre
sin nombre
6 years ago

Congratulations Justin on getting enough foot traffic that someone would unironically use the phrase ivory tower in the comments.Report

Carlos
Carlos
6 years ago

That’s fair. My apologies.Report

Greg
Greg
6 years ago

Glad to see some philosophers questioning the government’s role institution of marriage. I imagine few people would be comfortable taking the matter of whom they take to bed to a vote in their neighborhood.Report

real_email_fake_name
real_email_fake_name
6 years ago

Quick correction: the headline is misleading (and potentially harmful). Obergefell v. Hodges was not about gay marriage. It was, rather, about same-sex marriage.Report

Devon
Devon
6 years ago

I agree regarding government involvement in the bedroom, Greg. But (and please correct me if I’m wrong), it seems like you are saying the government should not have stepped in and mandated the right to same-sex marriage; by so doing, they were overreaching their authority.

Assuming that is what you meant (though, regardless of what you meant), I have to point something out: I’ve seen the “government overreach” argument many times in many places on this topic, but what so many fail to realize is that it’s quite the opposite.

Prior to the ruling, the government was “sticking their noses in” where they didn’t belong; by restricting the right to marriage to only a specific type of union, they were overreaching their authority. The primary argument we heard against same-sex marriage was a religious one, which, on the one hand, is never a valid reason to restrict someone’s rights, and on the other, not something the government should be using to create laws.

Libertarians and Republicans alike should be celebrating this decision, as it removed one more regulation/restriction from the hands of the federal government, a philosophy both groups very loudly claim to support, and work very hard to bring about.

All that aside, for me, it comes down to two very simple questions. Does it hurt anyone other than the consenting adults involved? If not, it should not be illegal. Does it restrict the rights of anyone other than the two consenting adults involved? If not, it should not be illegal.

I find myself slowly becoming more liberal; when I was younger, I considered myself conservative, because I didn’t believe the government should punish behavior that didn’t hurt anyone. As time goes on, I have realized the great issues of freedom in our day are those that will be won by liberals: civil rights, women’s rights, the right to marriage, legalization of marijuana, the restoration of the middle class…all major issues that, hopefully, we will deregulate and bring back under the control of the people, and the community, rather than the church and the government.

Thanks for reading my response, and again, I apologize if I misunderstood your statement.Report

ConservativePhilosopher
ConservativePhilosopher
6 years ago

It is very strange why the government is even in the marriage business, if we think of marriage as a loving relationship between consenting adults. What does the government have to do with that? I take it that if the government is going to recognize, regulate, and confer benefits on some institution, that there must be a public purpose in doing so. But if marriage is just a private union between consenting adults, there’s no reason for it to do this.

Accordingly, if the government is going to get involved in the marriage business, then it must regulate marriage for reasons other than love. And the only public purpose that I can think of is marriage’s dynamic orientation toward children — something only a man and woman can fulfill.Report

Clayton
Clayton
Reply to  ConservativePhilosopher
6 years ago

“And the only public purpose that I can think of is marriage’s dynamic orientation toward children — something only a man and woman can fulfill.”

You seem to think that this talk of a ‘dynamic orientation toward children’ should be understood in terms of procreation to the exclusion of other activities oriented towards the welfare of children. Even on this very narrow understanding of the legitimate purpose of recognizing marriage, caring for children and raising them seems like it should count. Did that one slip your mind or did you have some reason to think that same-sex couples couldn’t fulfill that role?Report

Ben A
Ben A
6 years ago

ConservativePhilosopher, do you think that infertile opposite-sex couples or opposite-sex couples well past the age of procreation should be able to marry? If so, why?Report

alxnimrod
6 years ago

Coming from a perspective of viewing marriage as a woman’s right, I cannot deny that the Supreme Court decision indeed strengthened that right. And that is a good thing for us all.That said, the decision utterly ignores the equally important area of multiple partner marriages, although it may well be interpreted to legalize those, along with sibling marriage, child marriage, temporary marriage, and any other form people may dream up. One unfortunate effect of the structure of the case is giving men the right to forn a marriage without a woman in it, which basically misses the point of marriage.

So all in all, it’s quite a mixed bag piece of judicial work. Statistically, far more women than men form same sex marriages where it becomes legal. That will turn out to be somewhere around 30% to 40% of the U.S. after various states restructure their marriage law and procedure to remove it from this Court’s jurisdiction.

In sum, a victory for women, not so much for men.Report

ConservativePhilosopher
ConservativePhilosopher
6 years ago

@BenA: Yes, their marriage is still a procreative-type union, similar to how a broken arm still remains an arm even if it’s unable to fulfill its function.Report

Arthur Greeves
Arthur Greeves
6 years ago

Devon said, “As time goes on, I have realized the great issues of freedom in our day are those that will be won by liberals: civil rights, women’s rights, the right to marriage, legalization of marijuana…”

The great issues of our time, marijuana legalization? For real? Our parents fought for black people, we fight for … weed? Our grandparents won the right for women to vote, we won … what? The right to chill?

One of these things is not like the others!Report

Coherentist
Coherentist
6 years ago

Conservative philosopher, following up on Ben’s point, stable caring relationships between citizens quite easily fulfill a number of public purposes (e.g., encouraging circumstances conducive to financial stability, provision of healthcare and care-taking, etc.). Perhaps I’m not sure what you mean by public purpose.Report

Alan White
6 years ago

This thread won’t end well, if by “ending well” you have a predisposed idea of what the purpose of this thread is supposed to be, given the dissent therein.Report

ConservativePhilosopher
ConservativePhilosopher
6 years ago

@Coherentist: Sure, I can agree with that. But what is it that makes marriage unique from, say, a friendship? There are many different types of valuable social relationships, but clearly they aren’t all recognized and benefited by the state.

So yes, there’s no doubt that legalizing same-sex marriage will give same-sex couples benefits that they didn’t have before. The more pertinent question is: Why do these benefits exist to begin with? Clearly not every loving relationship gets them, so what makes marriage distinct? My answer is that because marriage conceived of a conjugal union is uniquely oriented towards new life, which gives the state a reason to benefit in a way that it doesn’t other relationships.Report

sjean
sjean
6 years ago

I keep hearing the term marriage equality being used. It is not true marriage equality until every consenting adult, no matter the gender or amount of adults, are allowed to marry. Only then will it truly be equal, otherwise it is still discriminatory according to the equality argument.Report

PJay
PJay
6 years ago

Until I can freely and legally marry my two fiancees, we do not truly have marriage equality in the United States.Report

Phil H
Phil H
6 years ago

Two conservatives expressed this argument:
“It is very strange why the government is even in the marriage business, if we think of marriage as a loving relationship between consenting adults. What does the government have to do with that?”
“Once you make “marriage” about recognizing loving commitments…then…there is no reason for the state to regulate marriage.”

Which I understand. What I don’t understand is the follow-up:
“the only reason the state has been involved in marriage in the first place is because a man and a woman beget children”
“And the only public purpose that I can think of is marriage’s dynamic orientation toward children”

If you don’t think the state has any business regulating love, then what on earth would make you think that it has any business regulating children?! About the only way I can see for this argument to work is if you hold some kind of mediaeval divine-right-of-kings view whereby the state exists in some prior way to its citizens, and has some right to regulate what citizens it gets.

It couldn’t be a democratic view: democracy demands that the state represent and serves its citizens, not that it determine who has the right to produce them.

Presumably the answer will come: the state has a duty to ensure the well-being of its citizens, and it does that by encouraging the parents of citizens to be married. That makes sense, but it offers no reason to deny marriage to gay people or non-parents.Report

Yet Another Anon Grad Student
Yet Another Anon Grad Student
6 years ago

Conservative Philosopher,

That’s a hyper-rationalized misunderstanding of a historical institution. Historically, marriage has always been economic in nature: a business transaction between families that was central to socio-political foundations of feudal societies where wealth was primarily inherited. As the west shifted to a capitalist economic system marriage gradually lost many of its legal attributes. It’s largely a vestigial practice that our legal system ties laws regarding inheritance and tax benefits primarily to marriage. There’s really no need for it in the modern socio-economic system. Anyone should be able to pool resources and apply for tax benefits, decide who inherits their property, etc. This is the thing I find so funny about conservatives: they just don’t realize that it is ultimately capitalism that destroys traditional values.Report

Carlos
Carlos
6 years ago

I once again am overwhelmed by the amount of hubris with which the contributors and many of those commenting are so quick to dismiss every thinker who came before us as irrational bigots for believing that marriage is conjugal and so of necessity between a man and a woman. Think of all the greats that 5 black-robed judicial activists (let us not mince words here, given that the majority opinion was, legally speaking, an embarrassment of the rankest sort) have condemned as homophobic bigots:

Aristotle. Plato. Xenophanes. Plutarch. Cicero. Augustine. Aquinas. Descartes. John Locke. Immanuel Kant. John Stuart Mill. Charles Darwin. Fyodor Dostoyevsky. Mahatma Gandhi. Bertrand Russel. Gödel. Mackie. G.E.M. Anscombe. Philippa Foot. And so forth.Report

Johnny_Thunder
Johnny_Thunder
6 years ago

ConservativePhilosopher says: “So yes, there’s no doubt that legalizing same-sex marriage will give same-sex couples benefits that they didn’t have before. The more pertinent question is: Why do these benefits exist to begin with? Clearly not every loving relationship gets them, so what makes marriage distinct? My answer is that because marriage conceived of a conjugal union is uniquely oriented towards new life, which gives the state a reason to benefit in a way that it doesn’t other relationships.”

When two people get married, they make a promise to each other to spend their lives together and to support each other through thick and thin. Isn’t it obvious why such people should get each other’s hospital visitation rights or child custody rights, whereas two people who merely happen to fall in love don’t get these same rights? Love is something we may feel for all kinds of people at various points in our lives, often from high school onward, but which is clearly not in and of itself the ground for the other person’s having any rights claims. Making about the biggest promise one can make clearly is the kind of thing that is a legitimate ground for new rights claims.Report

Johnny_Thunder
Johnny_Thunder
6 years ago

ConservativePhilosopher,
Your response to Ben is that couples with older members are of the type (man, woman), and that instances of this type should be allowed to marry. Why is that the relevant type, though? Why not the type (man, woman under 40)? That’s a more fine-grained type, is easily enforceable without violating people’s privacy rights, and better tracks the property that you think most relevant (ability to bear a healthy baby).

If you don’t care about how accurately your chosen type tracks the property you care about, then why not the type (adult, adult)?

(I’m assuming that for each of the pairs above, the first member is no more closely related to the second than by second-cousinhood. There might be other appropriate restrictions, but those are just complications that don’t change the point.)Report

Coherentist
Coherentist
6 years ago

Carlos, you know the things that Aquinas, Aristotle, Kant, and others have said about women, right? I assume you wouldn’t want to defend them from the charge of sexism on the basis of their otherwise great intellectual work? From the fact that they were brilliant philosophers it does not follow that they could not be prejudiced.Report

Matt Weiner
Matt Weiner
6 years ago

“And the only public purpose that I can think of is marriage’s dynamic orientation toward children — something only a man and woman can fulfill.”

Aside from all the other problems that have been pointed out with this argument, the last clause is false, which renders the argument useless as an argument against same-sex marriage. Plenty of same-sex couples have and raise children. And an argument that the government only has an interest in regulating and promoting relationships that produce children who the biological children of both parties is going to get so strained that it couldn’t possibly be reached by someone who wasn’t working backward from a homophobic conclusion.Report

Claire Grant
6 years ago

‘Conservative philosopher: two things. 1) Conservatives disagree over same sex marriage. Numerous of them support it, including the UK Head of State David Cameron. You would hence have done better to have written under your own name.
2) Your claim that state marriage is for be getting children is unavailing. Aside from the barren conjugal couple already mentioned (and to which your response was weak) it is the case that state marriage was not created for that purpose (read Les Green). You also ought to note that gay couples now do have children and raise them wonderfully in their gay-parented families. For that reason too, arguing that marriage is for raising children does not avail in your attempt to impugn gay marriage.Report

Esa Diaz-Leon
Esa Diaz-Leon
6 years ago

ConservativePhilosopher: if the purpose of marriage has to do with children, what is the difference between a straight couple that can only conceive children by means of artificial insemination, and a lesbian couple that can only conceive children by means of artificial insemination? I see no way of making the distinction so that a ban on same-sex marriage is justified.Report

Alastair Norcross
6 years ago

Carlos, you think that Plato took what so many historically ignorant conservatives call the “traditional” view that marriage is conjugal? Have you read the Republic?Report

Anon
Anon
6 years ago

Carlos is probably referring to Laws IV. See, for example, the following passage*:

Ath. What will be our first law? Will not the the order of nature, begin by making regulations for states about births?
Cle. He will.
Ath. In all states the birth of children goes back to the connection of marriage?
Cle. Very true.
Ath. And, according to the true order, the laws relating to marriage should be those which are first determined in every state?

* Sorry for the old translation and lack of Stephanus numbers — away from my copy and had to use the MIT free version.Report

Carlos
Carlos
6 years ago

The objection from infertility is a very weak one, I think. See, for example, this site, which addresses this objection at length, drawing from the work of Robert P. George, Sherif Girgis and Ryan Anderson: http://discussingmarriage.org/the-objection-from-infertility/#.VZLjlFJHanM. (Of course, George, Girgis and Anderson’s book *What is Marriage?* is a very good resource and one that critics seem to have neither read nor intellectually engaged with.)

Let’s try putting the marriage revisionist on the defense here for a change. I think it is fair to say that the one objection against the conjugal account of marriage is the infertility objection. On the other hand, however, the marriage revisionist’s position is littered with problems. If we take the revisionist account of marriage to be “a loving commitment between persons,” or something to the effect, then we are at a loss to explain various features of marriage that even the revisionist seems to want to affirm. We can no longer explain why marriage must be between two persons, as more than two persons can be in a loving commitment with one another. We cannot explain why those who are related to one another cannot marry, as, say, a brother and a sister might be in a loving commitment with one another (and there isn’t anything, on this view, that demands that a marriage be sexual). Why, on this view, should marriage be sexually exclusive? After all, some might argue (indeed some have argued) that sexual “openness” fosters loving commitment. Why should marriage be permanent on this view? Why not just have it last as long as the loving commitment lasts? Why is the state involved in regulating marriage? After all, the state exists to regulate public goods and whether Bob loves Susan or whether Steve loves Joe is essentially a private matter. What are we to make of the requirement (now passé, perhaps) that a marriage wasn’t valid until consummated? If marriage is just a loving commitment, why need it be sexual at all, much less consummated? The revisionist seems at a loss to be able to explain all of this. Naturally, then, revisionists will simply deny that these are features of marriage. Thus you see, as you see in this post (and in the comments) revisionists calling for the recognition of many-person “marriages” and others wondering why the state regulates marriage at all in the first place.Report

Lowly Undergrad
Lowly Undergrad
6 years ago

I think the *literal* enslavement of persons due to a plant (which is hardly harmful, and somewhat helpful) is a pretty serious issue.Report

Laura Grams
Laura Grams
6 years ago

Thank you for the interesting discussion above; I was pleasantly reminded of why I enjoy hearing what philosophers have to say about a topic. I also had the same question Alastair Norcross had about Plato’s Republic. Anyway, placing the topic of marriage equality into the larger context of why the state recognizes and confers benefits on marriages at all is particularly interesting to me when I recall that only about half of current U.S. households include a married couple, and that current marriage rates are sharply divided among economic classes. For instance, women with higher incomes are more likely to be married than women in the lower half of incomes. An AEI study from last year claimed about a third of current U.S. family income inequality can be linked to lower numbers of stable marriages. I’ve seen at least one study claiming the trend holds for same-sex marriages, where the partners are more likely to be financially stable than single people. When it comes to marriages and children, those who live in families with married parents are far less likely to be living in poverty; meanwhile, according to the NCCP I believe more than a fifth of all children in the U.S. are presently living at the poverty level. For women under age 30: more than half of all births are to unmarried women, a majority of women who have never graduated from college will have at least one child outside of marriage, and a majority of women who have a high school diploma or less will have all of their children outside of marriage.

I don’t want to imply that the causal story here is simple – after all, if a government offers tax breaks to married couples then it is helping to generate the economic benefit it hopes marriage will bring. However, in general, if the government wants to encourage stable family units with a hope of increasing economic success, especially for children, then it has an interest in recognizing and promoting marriage. I take it as obvious, as Matt Weiner explained above, that same-sex couples already have children, and I’m assuming similar benefits flow to those children and the entire family when marriages are recognized and promoted. The long-term relationships developed in marriage also may be helpful for care-giving and other benefits that tend to be “hidden” economically. I’m not sure how much policy-level promotion of marriage by the government I’d recommend, nor would I wish to boil down the benefits of marriage to greater economic success alone, but recognizing marriages equitably for all citizens is a important part of encouraging stable families. Far from eroding the institution of marriage, I see this development as bolstering it and in this way I also see it as the “conservative” position. The view of those who reject the pro-marriage position has some appeal, insofar as they advocate greater liberty in determining family arrangements outside the sphere of government influence altogether, but I think the U.S. would benefit far more from a reversal of course in the present marriage trends. Again, I know the causal story here is complicated, so it’s not as if changing one factor would cause an underlying social and cultural shift, but I’d still like to see that shift happen.Report

Wonderer
Wonderer
6 years ago

I wonder Carlos’ claim about Foot is right? After all, I thought she and Murdoch were in a loving relationship for a while. In Natural Goodness, too, she refuses the view that childless people are defective in any way.Report

Lowly Undergrad
Lowly Undergrad
6 years ago

My last comment was meant to be a reply to Greeves @ 15.Report

Johnny_Thunder
Johnny_Thunder
6 years ago

Carlos,
I don’t understand the response to the infertility objection on the website you link to. The website says: “That is, marriage is union in which the partners coordinate towards the good of procreation; this does not mean that partners are not legitimately married if they do not succeed in the desired end.” But many infertile people don’t “coordinate towards the good of procreation”; they don’t have the reproductive capacities to do so. If such coordination is necessary for a genuine marriage, then many infertile people can’t be genuinely married. If such coordination is not necessary, then there’s no reason why there couldn’t be marriages between same-sex couples.

As for the counter-examples you raise: first, a small point: the idea that marriage can be polygamous isn’t revisionist. It’s traditional to many societies.

Second, the conjugal view faces some of the same objections: relatives can stand in the one man, one woman relation and achieve the unifying good of procreation.

Third, Phil H (23) and Matt Weiner (29).Report

Carlos
Carlos
Reply to  Johnny_Thunder
6 years ago

It depends what you mean by infertility here. Girgis, George and Anderson might respond like this: if our account of marriage is correct and it involves bodily coordination towards procreation, then a man and a woman who can achieve the behavioral conditions of coitus can marry even if the non-behavioral conditions for procreation do not obtain. This explains why the law in the Anglo tradition has, in the past, recognized a marriage is valid after it has been consummated (or after there is reason to believe that it has been consummated) and not after conception occurs. On this view, then, an infertile couple, because they can fulfill the behavioral aspect of bodily union in coitus can indeed marry even if such a thing doesn’t result, for non-behavioral reasons, in conception, can still marry, metaphysically speaking. (Indeed, the same applies to spouses who are not infertile: often times perfectly-fertile spouses fulfill the behavioral conditions for bodily union but conception nevertheless doesn’t take place, but we would not think that they are not married when conception doesn’t occur.) Girgis et al. provide various analogies here: is a baseball team still not a baseball team if it loses a game? Is a political campaign not a political campaign if it turns out to be unsuccessful? Is an eye that cannot see still not an eye? And so forth. It seems that the thing in question remains to be the sort of thing that it is even if it fails to fulfill, for whatever accidental reason, the good(s) towards which it is ordered.

Now, Dr. Corvino (as far as I am aware, the only philosopher who has interacted with Girgis, George and Anderson’s work) has raised an interesting objection here: what about couples who cannot fulfill even the behavioral aspects of bodily union in coitus? (Imagine, for example, a soldier who returns from war having miraculously survived after losing the lower half of his body and who cannot fulfill the behavioral aspect of coitus.) Here, it seems, that the account proposed by Girgis et al. imply that such a man cannot, metaphysically speaking, marry (though there may be privacy concerns for allowing the state to issue marriage licenses to some such couples). I fail to see, however, the force of this reductio; there doesn’t seem to me to be a problem with accepting that a couple that cannot fulfill the behavioral conditions of bodily union cannot, metaphysically speaking, marry.

RE: Polygamy–as I understand it, polygamy (one man, many wives) has been understood not as a marriage entity simpliciter but rather as a man who has multiple marriages. Here Girgis et al. might argue (successfully, I think) that marriage, because it is ordered towards the entire gamut of goods (and so is comprehensive in the goods towards which it is ordered) demands a comprehensive commitment (which itself means exclusivity at each time (thus sexual exclusivity) and throughout time (thus permanence)).

RE: Incest–I forget how Grigis et al. approach this worry but I would think that, because marriage is ordered towards procreation, a principled norm against incest can be drawn from their account of marriage (where as it cannot be drawn, I think, if we consider marriage to be a loving commitment between persons).

I’m not sure what you mean by “Third, Phil H (23) and Matt Weiner (29).”Report

sin nombre
sin nombre
6 years ago

Carlos,
These aren’t very good reasons why infertile couples should get married since most presuppose that marriage is about raising children. First, not all married couples want to raise children (like my marriage, for example); second, same sex couples may want to raise children. What’s the reason for denying them marriage and children? Maybe you will say that family units must be mother-father ones, but that’s a modern reconstruction on family units as earlier forms of families were more extended, involved more people with different roles. The idea that marriage equality is a revision of the concept of marriage is only problematic if we assume that marriage has one natural meaning, but, empirically anyways, that’s just not true. The family unit of say Plato’s almost certainly included slaves and extended family members and would doubtless be unrecognizable as a natural family in the US today. Buy maybe you’ll say that’s family, not marriage. Sure, but marriages in those days and for some time after and before were about women as chattel, political arrangements, property inheritance, or all kinds of other reasons than a man and a woman love each other and want to start a family. It just sounds like you prefer this present incarnation of marriage as natural, but that’s really arbitrary if you learn anything at all about marriage’s history.

Let me try to answer some of your questions:
1. It seems the polygamy account is a red herring. I struggle to see how going from a marriage is between two consenting adults of different families to marriage is between three consenting adults. That’s a slippery slope argument, and not a good one since the significant challenge to the marriage definition is not about how many but who. That’s a simple fix.
2. It’s funny that you brought up the idea that marriage be sexual since one of the objections to the infertility argument was that it is invasive to the couple to ask whether or not they are fertile. Wouldn’t it also be invasive to a same sex couple to ask whether or not they are having sex? It is possible that two asexual people (people who don’t want to have sex) could get married so I’m struggling to see the objection here. What if an elderly couple could no longer have sex but just wanted the marriage commitment? Would you deny them on that basis?
3. Marriages are not always permanent, although some have died for this ideal. Are you suggesting we abolish divorce in this country? On what grounds should marriages be permanent?

I’m not at a loss, except as to how you don’t see how your position is also revisionist since prior to the idea of one man and one woman marriage concept, many marriages were (a) polygamous or incestual, (b) consummation was important, but the sex need not have continued after that point since many marriages were for political advantages or alliances, (c) marriages were not permanent–something some people in the west tried very hard to insure. So, your idea of marriage is also a revision.

I’m also having a hard time understanding the hostility to the other commenters on this page. I don’t get the ivory tower complaint because that suggests we are out of touch, but that’s really vague and I see no evidence to assume that. I also don’t see how most people here are being dismissive since it seems to me as they are just engaging in arguments. It really looks like you are upset that your view is in the minority here (welcome to my world) and are just lashing out at that fact.Report

Yet Another Anon Grad Student
Yet Another Anon Grad Student
6 years ago

The infertility objection falls flat on its face from a historical standpoint as the infertility of one partner has traditionally been grounds for annulment of the marriage: i.e., a declaration that the marriage is invalid. Once again, this is because marriage has always been an economic agreement. What we have now is so different that it is really something else entirely. The proper response to this is that marriage is no longer important, not that it is a fundamental right. To be sure, people do have fundamental negative rights of non-interference regarding who they choose to spend their time with, share property with, have sex with, etc. But the idea that people have fundamental positive rights to tax breaks and licenses is pretty ridiculous.

All of these points about natural language semantics and the metaphysics of social instutions have little to do with the law. The fact of the matter is that the government can’t grant some couples privileges while denying those privileges to other couples solely on the basis of the gender of the couples. Whether this is due to the use of a definition taken from natural language is irrelevant. Suppose that instead of ‘theft’ English-speaking society used the term ‘schmeft’, which was similar to ‘theft’ in all respects except that it requires that the person whose property is stolen be white. Clearly any laws based on ‘schmeft’ would still be discriminatory, regardless of the fact that one would have to change the meaning of ‘schmeft’ in order to make it apply to non-whites. It is also clear that marriage laws are not granted because the government wants to promote something. Rather they are holdovers from the old feudal laws that have been gradually modified over time. I’m sympathetic to Brook Sadler’s contribution above.Report

Alastair Norcross
6 years ago

For the record, many philosophers have read and intellectually engaged with the George, Girgis, Anderson book, which is really a lengthy restatement of their already overly lengthy article from a Harvard undergrad journal. One who has not just read and intellectually engaged with it, but thoroughly destroyed anything remotely like an argument in it is John Corvino.Report

Carlos
Carlos
6 years ago

Sin nombre,

This might get a bit long so I ask for your patience. I would think that a couple who can fulfill the behavioral aspects of bodily union and so can unite comprehensively can still be properly said to be married even if the couple does not desire children (though this might be an instance of an imperfect marriage (note that this is not intended as an insult or to demean but, if correct, as a statement of metaphysical fact)).

RE: Same sex couple wanting to raise children. Big topic. First, I would note that the mere presence of a desire to raise children (or even actually raising a child) is not sufficient for marriage. If it were, then two brothers–say, one a widow and another who never married–who are raising a child (from the widow’s marriage) would be married, as would a convent of nuns raising a child. We have, in effect, then, changed the topic. Second, your phrasing of “denying them children” is problematic. Are we to think that a same sex couple has a right to a child? This seems to be what Anthony Kennedy and what many supporters of same-sex “marriage” think. Now, for a child to be in the care of a same sex couple, one or more of the following conditions must obtain: a divorce, which results in the child being placed in a same sex household, adoption, or surrogacy. All such things, I submit, are injustices to the child. No-fault divorce has to go. It prioritizes the whims of adults over the needs of children to have a relationship with their mother and father. (This is not to say that divorce itself is impossible or impermissible, but divorce should be sought only for dire reasons, e.g. adultery, abuse, abandonment, etc. Currently, most divorces occur for silly reasons which do not consider what is best for the child.) Adoption, we know, is tragic insofar as it implies that something unfortunate happened in order for a child to be in need of adoption in the first place (that is, the child’s parent’s either died, abandoned him, or were incompetent). Further, adoption exists not to meet the whims of adults but rather to tend to the needs of children. What is best for a child is to place him in an environment that is most similar to what he otherwise would have had: with a married man and woman so that he might have a relationship with a mother and father. Finally, surrogacy, I submit, is morally problematic insofar as it involves not just the abuse and treating of women as breeders, but also the commodifying of human life to be bought and sold as one would buy or sell a pet or property. Not to mention the fact that surrogacy intentionally detaches children from their mother and father (one again, an injustice committed with the whims of adults in mind, not the needs of children).

RE: Marriage sought for political arrangements, property inheritance, etc.–This is to contemplate the private reasons one might choose to marry (of which there can be innumerably many) and to brush past the central question, viz. what is marriage?

“1. It seems the polygamy account is a red herring. I struggle to see how going from a marriage is between two consenting adults of different families to marriage is between three consenting adults. That’s a slippery slope argument, and not a good one since the significant challenge to the marriage definition is not about how many but who. That’s a simple fix.”

That’s to miss the point. What is it about marriage as the revisionist thinks of it that makes it only possible between two people? If, as the revisionist contends, marriage just is a loving commitment between persons, why can only two persons marry? After all, 3 persons can very well be in a loving commitment with one another. The only reason we got to the number 2 in the first place is because bodily union is only possible between a man and a woman and because of the goods towards which such a union is ordered.

“2. It’s funny that you brought up the idea that marriage be sexual since one of the objections to the infertility argument was that it is invasive to the couple to ask whether or not they are fertile. Wouldn’t it also be invasive to a same sex couple to ask whether or not they are having sex? It is possible that two asexual people (people who don’t want to have sex) could get married so I’m struggling to see the objection here. What if an elderly couple could no longer have sex but just wanted the marriage commitment? Would you deny them on that basis?”

The point is that on the revisionist account, sex is fungible because it is a mere means to deepen one’s loving commitment. On the conjugal view, marriage is only possible, metaphysically speaking, between persons that can have comprehensive union (which involves bodily union) which itself is possible only between male-female pairs. If bodily union is not possible, then marriage is not metaphysically speaking possible. Nevertheless, the state may issue a marriage license to a couple who cannot unite bodily because of privacy concerns.

“3. Marriages are not always permanent, although some have died for this ideal. Are you suggesting we abolish divorce in this country? On what grounds should marriages be permanent?”

Girgis et al. suggest that the norm of permanence is grounded in the comprehensive goods towards which marriage is ordered. As I suggested above, I think that no-fault divorce has to go (its effects, as empirical evidence demonstrates, have been utterly pernicious). This doesn’t mean that divorce itself many not be a permissible feature offered by the state. As I suggest, divorce may very well be intelligible in the presence of abuse, abandonment or adultery.

Lastly, I don’t think I’ve been hostile in my comments. I disagree with mostly everyone on here and have worded my comments sternly, but I wouldn’t characterize this as hostility. The ivory tower complaint is that I see many very intelligent fellows on this post (in the comments and the piece) expressing confusion as to why the state should regulate marriage at all or why marriage is only possible between two persons and not more. This is due to the fact, I think, that many in academia (and many lay persons who nevertheless have been influenced by products of the academia) have been buried too deep reading highfaultin’, radically sexually libertinist material and so have lost touch with something that I think is plain: the only reason marriage has been both regulated by the state and has been between two persons and not more is because of the sexual complementarity of man and woman. That’s it. Not because of animus towards homosexuals, not because of any heteronormativepatriarchal white privilege thingamajig.Report

Alastair Norcross
6 years ago

Robert, I took Devon to be asking whether same-sex marriage hurts anyone. Your claims seem to be intended to show that homosexual behavior has harmful effects. Are you arguing that we should criminalize homosexual behavior? If not, what is the relevance of your claims to the issue of same-sex marriage? Do you think that the legalization of same-sex marriage will increase the kinds of behavior that you claim leads to harmful results? If you do think we should criminalize homosexual behavior, I presume you also think we should reintroduce prohibition of alcohol, prohibit all tobacco products, ban high fructose corn syrup and pretty much all processed foods, ban private automobiles, and criminalize living in the South, which has a higher divorce rate than other parts of the US, and worse health.Report

Johnny_Thunder
Johnny_Thunder
6 years ago

Carlos,
A few thoughts:

1.
You say: “Girgis, George and Anderson might respond like this: if our account of marriage is correct and it involves bodily coordination towards procreation, then a man and a woman who can achieve the behavioral conditions of coitus can marry even if the non-behavioral conditions for procreation do not obtain.”

I don’t see how the “behavioral conditions of coitus” is equivalent to coordinating towards procreation. I can squat down and move my hands as if I’m sitting in my car and turning the steering wheel. That’s not at all coordinating towards going driving to New York. Similarly, performing the behavior that tends to go along with coitus is not at all coordinating towards procreation if both parties know there’s no chance of procreation. The problem might be that the idea of “coordinating towards x” is left too obscure here, but of course, that’s not a defense of the account.

2.
I wonder what “the behavioral conditions” of coitus are. Suppose a woman has a vagina capable of receiving a penis. Suppose further that her physiology is such that she takes no physical pleasure in intercourse and is infertile. I would think her capable of meeting the bodily conditions for coitus. But it seems incredibly wrong-headed to me to think that the possibility of inserting a penis into her vagina can radically change the status of her relationships. That’s just not the kind of thing we should care about in a relationship–we should care about things that matter to people, like affection, pleasure, respect, support, promises, etc.

If we privilege the mental/emotional component of sex instead of the narrowly behavioral one, as you suggest, then we could then get the result that same-sex couples can coordinate towards procreation. Given that both understandings of “coordinating towards” can be completely disconnected from the potential to procreate (see (1)), I see no reason to prefer one conception of “behavioral conditions” over the other.

3.
It’s possible that our disagreement is verbal. I take it that, for a trait to determine whether or not a relationship is a marriage, that trait has to be something we should care about. If you disagree with that, then I think we’re using the term ‘marriage’ in pretty different senses. (If you think a woman who takes no pleasure from sex and who is infertile should care about having sex–with, say, a partner who also takes no pleasure in it–then you’re either crazy or relying on religious assumptions about intercourse.)

The issue would then be about government policy. But it seems clear to me that a trait that’s not the kind of thing we should care about in a relationship, like susceptibility to penetration per se, is not the kind of thing that’s relevant to government policy.

Come to think of it, even if we’re not talking past each other, and you’re right about marriage, then marriage would clearly not be the kind of thing the government should do anything about, for the reasons just indicated. The government shouldn’t recognize relationships in virtue of one partner’s being able to penetrate the other. See my comment 27 above.

4.
On the analogy with baseball:

Ordinarily, when a practice can be done towards different ends, as baseball can be played to win, to get exercise, or to socialize, no single one of these ends is mandatory. For example, you can play baseball to win only, you can play to hang with your friends only (and not keep score), etc. It is coherent to insist that in the case of marriage, one purpose (procreation) is mandatory. But it seems unmotivated and probably post hoc, particularly given the problems that arise in connection with infertility.

6.
“Phil H (23) and Matt Weiner (29)” are two references to previous comments. Matt Weiner addresses your assumption that the proponent of same-sex marriage can’t view procreation as one of the goods of marriage. Phil H reduces the conjugal view, connected with the view that the government should recognize marriage, to absurdity.Report

sin nombre
sin nombre
6 years ago

You do realize that part of the age of mass incarceration, especially aimed at blacks and latinos, is the drug war. In particular, the criminalization of marijuana.Report

sin nombre
sin nombre
6 years ago

Carlos,

1. I don’t understand your response to Corvino’s point about the wounded soldier getting married. It seems as if that person can get married without being able to fulfill the basic threshold you set for marriage. Why? And if for private reasons he can get married, why couldn’t he get married to his boyfriend?
2. Why don’t same-sex couples have a right to a child? Your reasons against this are a bit confusing since (a) some couples get divorced for very legitimate reasons like spousal abuse, (b) adoption need not entail some tragedy of some sort, (c) surrogacy could be done by a friend who volunteers her uterus (or in the case of lesbians a friend who volunteers his sperm).
3. You never address my point on how your view of marriage is also revisionist. After all, it wasn’t the original view or function of marriage. So how do you know that this is the only true and natural form of marriage. I suppose you have the metaphysical marriage claim, but you waived that for the injured soldier so I suspect that’s just arbitrary.
4. I fixed the so-called revisionist definition so why not address the definition I gave you rather than that straw man that you keep poking at.
5. Suppose to quadriplegics wish to get married (and they were opposite sex). Are you saying they can’t? It seems like your revised version of marriage latches on to children, but, again, that’s not always been the reason for marriage and so it’s arbitrary to assume that all romantic commitments must lead that way.
6. What about a couple that has no children, can they get a no fault divorce? Aren’t you discriminating against people with children now?
7. I would suggest that marriage in a democracy (or anywhere really) is a social institution that ought to serve its people. In that case, it makes more sense to think of it as having pluralistic aims since we live in a pluralistic society. Your dismissal of that (and I say this because you use funny names for people who make this argument in your last paragraph) suggest that maybe you are out of touch with just how pluralistic this society is. It may well be that marriage laws were not intended to be exclusionary, but they have become that way and to the extent that important benefits are provided with marriage it is a simple example of inequality to deny such benefits on the basis of only one possible function of marriage.Report

Kathryn Pogin
Kathryn Pogin
6 years ago

Robert, perhaps you are unfamiliar with the epidemic of homelessness amongst LGBT youth and its causes, or the difference between being subject to prejudice coming from within your own family, friends, religious group or community, versus having that community to rely on when one is subject to prejudice, discrimination, or even violence, but you might want to remember before you conclude that engaging in same-sex relations is itself “lethal” that there are these additional factors, and others, that might contribute to differences in health and wellness, too.Report

sin nombre
sin nombre
6 years ago

Robert,
Suppose those statistics are true, I’m unclear what they mean. I think you are saying:
1. “alternative lifestyles” are correlated to health problems both mental and physical.
2. Homosexuals are more sexually promiscuous.
3. There aren’t even that many homosexuals that want to get married.
C. Expanding marriage rights can be harmful.
If that’s not your argument, I’m not sure what it is. There are a few things that are problematic here.

1. “Alternative lifestyles” does not refer to some monolith, but rather the LGBTQ community is a plurality of people with vastly different experiences and runs the gamut between class, race, religion, etc. As Kathryn Pogin noted, one big problem is homelessness among many members of the LGBTQ community (though, of course, not for everyone since there are also very affluent members). So, depending on who you mean in the LGBTQ community, it is not surprising to see statistics of mental disease or suicidal thoughts this high since many trans people, for example, often suffer a great deal in terms of acceptance, violence, homelessness, etc. That seems to be a result of failing to find acceptance and support in their lives and not about their lifestyles. There are legal protections for other oppressed minorities, but not for LGBTQ members.

2. Suppose a straight couple with both members having HIV wanted to get married, would you say they can’t or shouldn’t? What if just one of them had HIV? I don’t understand why it matters if people with physical or mental illnesses wanted to get married so long as they are consenting adults. Could you explain this?

3. As to the promiscuity, well, two things: (a) straight people can also be promiscuous (the confirmed bachelor, cheating spouses, etc.) and (b) those people who do not want to have a monogamous relationship probably won’t marry so why is this consequential? Are we going to bar cheating heterosexual spouses from marrying, reproducing, carrying after children?

4. As to many homosexuals don’t want to get married, so what? I don’t see why it matters if there are a lot of people who want to get married; the question is can marriage legitimately be narrowed to opposite sex couples? On what grounds? If your grounds is this empirical data and assuming we take it to be true (sure, why not) I still don’t understand why this means same sex marriage constitutes a harm any more than opposite sex marriage?

5. I’m actually worried about what you think your statistics conclude. Are you saying that it is something about the nature of a homosexual to be more promiscuous, mentally ill, etc.? The setup looks suspiciously like those arguments about black crime rates that infer that blacks are naturally criminal or violent rather than look at external social conditioning of this phenomenon.Report

Klingsor
Klingsor
6 years ago

Yet Another Anon Grad Student: “The fact of the matter is that the government can’t grant some couples privileges while denying those privileges to other couples solely on the basis of the gender of the couples.”

I assume this commits you to the claim ‘Discrimination solely on the basis of gender is wrong’. Now, some disambiguation of the following sentence is true: ‘Discrimination solely on the basis of age is wrong’. And yet it is not unjust that my grandmother can receive a state pension while I cannot.

Possible response: pensions are not a case of discrimination solely on the basis of age. The discrimination is based on the fact that earning a living is typically a greater hardship for old people than young people. And so it’s permissible even if earning a living is a greater hardship for some young people than for some old people.

The parallel: marriage not open to same sex couples is not a case of discrimination solely on the basis of gender. The discrimination is based on the fact that long term opposite-sex couples are very likely to have custody of children while same-sex couples are very unlikely to. And so it’s permissible even if some opposite-sex couples don’t have custody of children and some same-sex couples do.Report

Anon Fem
Anon Fem
6 years ago

Just a quick follow-up on #9. The court ruled that same-sex couples can receive marriage licenses, regardless of their sexual orientation. That includes (at least) straight people, bisexual people, asexual people, and pansexual people — not just gay people. The erasure of bisexual experience in so public and prominent a venue is troubling.

Activists have long-abandoned the out-moded language of “gay marriage” for good reason, and it is disheartening to see it get used here. Making this sound as though it’s all about “gay marriage” is exclusionary and therefore problematic in precisely the way that “traditional views” about marriage are. The whole point of the ruling is to de-couple orientation from fundamental civil rights.Report

Yet Another Anon Grad Student
Yet Another Anon Grad Student
6 years ago

Klingsor, the main problem with that line of response is that there is nothing explicit in the law that says that marriage benefits are directed toward promoting the production of children. That and many long term ss couples do want to have children. If the law was about giving people tax benefits so they can have children then we would not give infertile people marriage licenses, nor should we. Demanding that someone prove they are fertile in order to receive a tax benefit to produce children is not unreasonable at all. If they prefer privacy, they needn’t have the benefit. In fact, the world is becoming quickly overpopulated. If anything we should be taxing people for having children. The fact of the matter is that marriage benefits are simply confered upon monogamous couples as a matter of habit. I’ve said it a couple times and I’ll say it again: marriage laws are merely an extension of an old practice from feudal society that makes little sense in the modern socioeconomic system.Report

Paul S. Rhodes
6 years ago

It is rather curious that while Justice Anthony Kennedy in his seminal Obergefell Decision this past Friday mentions intimacy as an essential component of marriage, never once does he mention physical intimacy. This is a little odd because the legal definition of marital consummation is not any act of intimacy–such as a soul-baring conversation about one’s deep, personal feelings—but a physical one. Perhaps, this was merely an oversight, or, perhaps, Kennedy did not want to draw attention to the notion that the legal recognition of same-sex “marriage” is tantamount to societal approval of certain acts that many people still find abhorrent. Perhaps, Justice Kennedy simply did not want to inflame the homophobic bigots any more than he had to.

Or, maybe, Kennedy’s silence on the rôle of physical intimacy in “marriage” indicates an acknowledgement, albeit tacit, that the legal recognition of same-sex “marriage” has nothing to do with the societal approval of whatever same-sex couples may do to express physical intimacy because the re-definition of marriage required to accommodate same-sex couples requires an abandonment of the notion of marital consummation altogether.

Marital consummation can’t simply be re-defined or expanded because no concept of marital consummation will cover both opposite-sex and same-sex couples. The English Parliament tried to do so when it legally recognized same-sex “marriage” and failed. It just cannot be done.

If you define marital consummation as coitus, then you exclude all same-sex couples, and that’s just heterosexist bigotry. But if you define marital consummation more broadly to include any penetration, then you’ve still excluded Lesbians who eschew strap-ons and fisting and gay men who prefer frottage.

And even if you re-define it to mean anything that leads to an orgasm, well, then you’ve just made any legally coherent definition of marital consummation impossible. Given that there are as many kinks as there are fantasies, it would be impossible for the law to acknowledge every single potentially orgasmic act. What? Two dacryphiliacs request an annulment because of Sjögren’s Syndrome? Can an autagonistophiliac marriage be annulled because of stage fright?

In short, what constitutes consummation becomes hopelessly subjective, thereby making it impossible for the law to acknowledge any objective or coherent concept of marital consummation. Thus, the law will have to jettison it altogether and therewith the idea that marriage has anything at all to do with sexual activity or physical intimacy of any sort. If “marriage” then has nothing to do with sexual relations or physical intimacy, then it cannot be said that “marriage” constitutes societal approval of any physical relationship, be it heterosexual or homosexual.

“Marriage” becomes no more than a friendship, and if the state still wants to encourage that these friendships be exclusive by means of various sanctions for adultery–be they criminal penalties, as is still the case in the military, or simply possible grounds for a fault-based divorce–then obviously adultery must be re-defined. It can no longer be understood as extra-marital sexual relations because “marriage” no longer is a sexual relationship. It is, to repeat, simply a friendship, and, therefore, “adultery” would have to be extra-marital friendship.

Same-sex “marriage” is a patent absurdity.Report

Jeff Hyams
Jeff Hyams
6 years ago

Aside from the likelihood that these comments about “justice” would be unlikely to hold up under examination by Socrates, what is amazing is that this is NOT a question of justice, but of law – specifically, the law of our Constitution. The decision fails miserably (and I should capitalize that, too, but I won’t.) Our Constitution does not claim that it is instituting justice among men – as if any short document could even attempt to do that – but the law under which we live. For the past half century our Supreme Court has decided that its job is to institute justice – and to hell with the liberties and law guaranteed to us by that document. We are no longer a free people; we are to be told what “justice” is, and how we are to live it, by 5 fools in black robes. We (the foolish among us) believe we are free only because those who now control us are aware that if they take everything at once, there will be violent rebellion. So they will take a little at a time until there is no one left to recognize who we once were. I am confirmed in my belief that Aristotle was not quite as wise as he is given credit for being. All men, by nature, do NOT desire to know; they wish to remain ignorant. All men DO NOT desire freedom. Only a handful do. Quite soon, no one will have any. Will it take another 1700 plus years to get it back? Only God knows.Report

sin nombre
sin nombre
6 years ago

Could you explain how extending marriage benefits to same sex marriage is a form of control or diminishes anyone’s freedom?Report

niqdan
niqdan
6 years ago

To Dr. Corvino’s interesting lead-in about the metaphysics of marriage, I offer the following, self-promoting analysis:
http://deadphilosopherssociety.com/how-to-judge-homosexual-marriages-and-avoid-hell-5984/
SSM needs to explain why a bodily reality in the world should be relegated to strictly mental being between believers. Even if justification for that relegation obtains, the courts cannot lawfully enact it.Report

Matt LaVine
Matt LaVine
6 years ago

I’ve been trying my best to avoid engaging in any of this and, for once, just take a step back to celebrate the fact that our extremely oppressive society has taken a small step toward being less oppressive (even if the ideal social arrangement would do away with the institution of marriage altogether). BUT, I always get sucked in! Two completely unrelated issues I’d love to please have people of any persuasion reply to are:
(1) ConservativePhilosopher’s reply “Yes, their marriage is still a procreative-type union, similar to how a broken arm still remains an arm even if it’s unable to fulfill its function” suggests that a relationship can be eligible for marriage iff there is some type of relationship of which the particular relationship under question is a token and that type of relationship is a “procreative-type union”. Whether or not I think this is a reasonable marriage criterion, it seems to me that same-sex marriages meet this condition. Any particular same-sex couple will be a token of the type human-human relationship. Human-human relationships are procreative-type unions (in a way that cross-species relationships aren’t procreative). An opponent of same-sex marriage may reply that there is a more specific type of union that same-sex couples fall into which is not procreative, but this is also true of the infertile couple. Considered as a token of the type infertile relationship, infertile couples are of a not procreative-type union.
(2) I find the “definition argument” against same-sex marriage really bizarre, but for different reasons than others it seems. To use an old, less-than-clear term, I’m something of a linguistic philosopher. So, I don’t know that I have problems with substantive conclusions being based on definitions. My problem with the definition argument has to do with its particular premises. For the sake of openness and clarity, I take the argument to be something along the lines of:
P1: A law allowing same-sex marriage would change the definition of the important concept ‘marriage’.
P2: Any law which would change the definition of an important concept ought not to be the law of the land.
CONCLUSION: A law allowing same-sex marriage should not be the law of the land.
The extent to which P2 is false has been made clear MANY times over. It basically makes progress in a society impossible. And since our country was built in some obviously racist, sexist, classist, etc. ways, it condemns our country to a future of racism, sexism, classism, etc. But, P1 seems just as clearly false to me.
If ‘marriage’ was DEFINED as a union between a man and a woman, then ‘same-sex marriage’ should literally be unintelligible (n.b. in the way ‘married bachelor’ is unintelligible). But, the right way to respond to an unintelligible law isn’t by opposing it. The right way to respond is by saying what in the world do you mean? Since opponents of same-sex marriage know EXACTLY what proponents are putting forth, ‘same-sex marriage’ is intelligible. Since ‘same-sex marriage’ is intelligible, its simply false that ‘marriage’ is DEFINED as a union between a man and a woman. It’s just that we’ve only ever allowed such unions to become a part of the extension of ‘marriage’. But, if this new understanding replaces P1, then this argument just amounts to saying that proponents of same-sex marriage want to let new couples get married. This isn’t an argument, though. It just restates my position back to me.

Thoughts?Report

Nic
Nic
6 years ago

FWIW many traditional marriages in Tibet involve polyandry (one woman marrying multiple men, usually brothers). This is definitely talked about and understood as a single marriage and NOT as series of marriages (there is a single wedding, not a series of weddings etc etc).Report

Phil H
Phil H
6 years ago

I agree with Matt LaVine’s comment above, and would just like to comment on the structure of definition-based arguments against same sex marriage.

When opponents suggest that marriage is to do with children, they make, I think, a normative claim about what the definition of marriage ought to be. They don’t generally examine the state of marriage in the USA at this moment, nor how the word marriage is used in English at this moment (if they did, the answers would not go their way – as Dan Savage argued, straight people redefined marriage…); they make claims about what marriage is for, and therefore what its definition ought to be, given its (normative) purpose.

The number of problems with the argument is obvious: one can deny the normative purpose; or the (necessity of the) relationship between marriage and its normative purpose; or that any harm comes from allowing marriage to fulfill other normative purposes. Or, using Matt’s approach, deny the validity of defining marriage in normative terms at all: say it is illegitimate to define marriage in terms of what it should do, and demand that marriage be defined in terms of what it is (or what the word empirically does mean, rather than what it “should” mean).Report

Richard Anderson
Richard Anderson
6 years ago

Re: Kevin Vallier: If the fear is that conservative Christians and others will begin widespread martyrous acts of terrorism if forced to pay taxes in exchange for being allowed to run schools that discriminate based on sexual orientation and gender identity, one thing we can do is simply remind them (the Christians and Muslims, at least) that Jesus said you should pay your taxes (“‘Is it right to pay the imperial tax to Caesar or not? Should we pay or shouldn’t we?’ But Jesus knew their hypocrisy. ‘Why are you trying to trap me?’ he asked. ‘Bring me a denarius and let me look at it.’ They brought the coin, and he asked them, ‘Whose image is this? And whose inscription?’ ‘Caesar’s,’ they replied. Then Jesus said to them, ‘Give back to Caesar what is Caesar’s and to God what is God’s.'”)Report

Robert Yost
6 years ago

I appreciate these recent conversations from philosophers on DN. I think that philosophy is a remarkable discipline and a tool that more people should take advantage of. Further, while I do support SCOTUS’s ruling, I also think that we should seriously engage with the dissenting opinions and with the cultural criticism that has come about as well. I don’t know that getting rid of marriage is the answer, but is there some precedent being set with the ruling that we should be worried about? Maybe even a precedent outside of legalizing gay marriage?Report

Jonathan
Jonathan
6 years ago

I’m fascinated but also rather baffled by Carlos’ arguments for what he calls the “conjugal” view of marriage. All of these arguments seem to consist of trying to undermine criticisms of that view. Even if he is successful in this (and I don’t think he is), all we’d have is a consistent “conjugal” view which *could* be correct. But where’s the positive argument for its correctness? Why should someone who doesn’t currently accept the “conjugal” view change her mind?

I’m also puzzled by the claim that marriage is a “metaphysical” union. I don’t understand what “metaphysical” means in this context. Does it mean that, by uttering certain words, or by performing certain actions in bed (I’m unclear when the “conjugal” theory states marriage actually begins), a sort of magical bond is created between two people? If so, how does that work? If not, what does it mean?

On Kevin Vallier’s question: “To put it starkly: should the IRS strip public funding and tax exempt status from every non-compliant theologically orthodox school and university in the United States (not to mention thousands of non-educational organizations)?:

Of course it should! I don’t see why this is presented as such a shockingly extreme suggestion. The suggestion isn’t that such institutions should be made illegal, only that they shouldn’t get tax breaks. And why should they get tax breaks? Vallier raises the spectre of Christians and Muslims engaging in mass civil disobedience, but if this civil disobedience consists solely of not paying their taxes, it’s hard to have much sympathy for them.Report

Jonathan
Jonathan
6 years ago

One other point I want to raise after browsing the defence of the “conjugal” view that was linked to earlier. This piece states:

‘First of all, the lived experiences of infertile couples advance our claim that marriage is inherently connected to procreation. Girgis, Anderson, and George explain that while childbirth is celebrated in a marital union, infertility is not: “There is no denying what countless infertile couples would be first to admit: Infertility is a loss, a regrettable lack. It makes it impossible for the couple’s union, though marital, to be in a new and quite literal sense embodied.”1

This does not make the marriages of infertile couples inferior, but infertility is something that is almost universally lamented in a marriage relationship. This would not be so if marriage did not find fruition in child-birth and child-raising in a way that no other relationship does. The point here is that infertility would not be seen as a loss in a marriage relationship quite so acutely if marriage, as a social institution, was not in some way intrinsically connected to procreation.’

It’s hard to know where to begin with this. First, infertility is also “lamented” by many unmarried couples too. It is not only married couples who wish to have children and who are distressed if they’re unable to do so. The argument is akin to saying: a broken leg is lamented within a marriage, therefore marriage is intrinsically connected to having unbroken legs.

Second, and I think more importantly, the authors gloss over the fact that plenty of people, including plenty of married people, have no desire to have children. For those people, infertility isn’t “a loss, a regrettable lack” at all. On the contrary, it may be actively sought, as with people who have vasectomies. Far from seeing infertility as a lack, they pay to achieve it. And there are plenty of married people who do that, including plenty of people who don’t have any children to start with.

If the “conjugal” view of marriage were correct then such people must literally not know what they’re doing, either when they get married or when they seek to achieve infertility, because these two goals would be utterly incompatible. This seems implausible to me. The “conjugal” defenders assert that “the lived experiences of infertile couples” support their views, but they entirely ignore or even deny the existence of the lived experiences of couples who don’t want children.Report

Shaun Miller
6 years ago

Just out of curiosity, what does anyone think about the critiques of same-sex marriage from a feminist point of view? I’m mainly thinking of philosophers such as Claudia Card and Nicola Barker.Report

Paul S. Rhodes
5 years ago

By deciding Obergefell under the due process clause of the Fourteenth Amendment, Justice Kennedy declared the civil recognition of same-sex “marriage” to be a pre-political right. if a right is pre-political, then it can be exercised without government interference. Yet, the “right” to civil recognition of a relationship obviously cannot be exercised without government interference. The central holding of Obergefell rests, therefore, upon a rather blatant logical contradiction. Law is supposed to be rational. The Obergefell decision is fundamentally irrational and, therefore, cannot command any obedience or respect from a rational citizenry.Report