Thursday, February 23, 2012

Some Conflicting Thoughts on Legalizing Same-Sex Marriage

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First Thoughts

When it comes to the issue of whether to legalize or outlaw same-sex marriage I (fittingly) have a maverick Christian view on this. I’m not in favor of legalizing or outlawing it, and I think there’s a better way to resolve the same-sex marriage debate that I’ll talk about near the end of this article.

Why am I not in favor of legalizing it or outlawing it? Since I’m a Christian, let’s address the last half of that question first: why am I not in favor of outlawing it? Don’t I think same-sex marriage immoral? Yes, but it’s easy to forget that just because something is immoral doesn’t mean we should outlaw it. Tolerance means tolerating behavior you don’t approve of, and while it’s not always easy to see how far tolerance should go, surely tolerance should be accepted to some degree even in regards to immoral behavior. For example, I think adultery is immoral, but should we outlaw it? I think divorce is in at least some cases a sin (one New Testament passage suggests Jesus was willing to make an exception for adultery), but should we outlaw divorce even in cases where infidelity did not occur? These do not appear to be good ideas. Or to use a perhaps more apropos example, should we outlaw sexual relations between two people of the same sex? Currently such sexual relations are not outlawed (though they once were) in the U.S., and while I don’t agree that such sexual relations are moral, I agree that we shouldn’t outlaw them. To some degree we have to respect the choices people make even if we don’t approve of them. When I take that into account it’s hard for me to tell whether we should outlaw same-sex marriage.

Complicating things further is the fact that most of us would tolerate marriages we believe to be immoral anyway. To illustrate, suppose a neo-Nazi man and woman marry, not out of love, but for tax benefits to fund their neo-Nazi propaganda and their promotion of racist bigotry. Most of us would agree that this marriage is not a good thing and would disapprove of it, even considering it immoral (assuming we would agree that funding and promoting racist bigotry is immoral). But should we outlaw this marriage on the grounds that we as a society disapprove of it and consider it immoral? That would seem to be infringing upon civil liberties.

There is the argument that same-sex marriage is somehow bad for society, but I’m skeptical of such arguments. To illustrate, consider the claim that a same-sex married couple adopting a child is harmful on the child, and for that reason it should be disallowed. It seems plausible to me that a man and a woman raising a child is more beneficial to the child than two people of the same sex, if for no other reason than for the variety of a parental relationship and it being plausibly more likely to have their differences complement each other. However, the same plausibility is shared by a married heterosexual couple versus a single man adopting a child, if for no other reason than a married couple has an extra person to help out ceteris paribus compared the single man. If single men adoptions are worse for the child than heterosexual couples, should we outlaw single men adopting children? I don’t think so, or at least if we were to do it I think the harmful effect would have to be very significant and not outlawed based on the mere fact that a heterosexual marriage would be better, and I don’t think the effect is harmful enough to justify that. So for the “harmful effect on society” objection to be sustained one ought to be careful about applying double standards, e.g. one shouldn’t be willing to ban same-sex married couples adopting children if the harm is no greater than a single man adopting a child. I’ve only skimmed some writings on this, but my first impression is that critics of same-sex marriage often don’t take comparative matters into account. 

Civil Union vs. Marriage

Now to critique some viewpoints the other side could raise; I’ll start with the idea of civil unions versus marriage. Here by “civil union” I’m talking about the sort that is equal to marriage in everything but the name (legal rights, tax breaks, etc.). Someone opposed to same-sex marriage could say we should define marriage as a union between one man and one woman but we could allow civil unions for same-sex couples. This way same-sex couples could have the same legal rights and privileges as heterosexual marriages. What is wrong with this solution?

One charge is that this is a “separate but equal” policy, and is therefore unethical. The “separate but equal” phrase delivers heavy rhetoric and little substance, with the reality being very disanalogous to the picture of discrimination the phrase invokes. One problem with the actual racial “separate but equal” policy is that blacks and whites were using different facilities (e.g. bathrooms) and the quality of the facilities ended up being unequal. In contrast, same-sex civil unions and same-sex marriages utilize the same legal rights and are identical in every way except for the title “marriage.” It would be more analogous to two men using the same restroom with one man calling it a restroom and the other calling it baƱo. Chanting “separate but equal” doesn’t make going to the same place and calling it a different name anything like the racial segregation policies of the early twentieth century.

But then why do some homosexuals insist on marriages over civil unions? The issue isn’t civil rights, because civil rights of a same-sex civil union are identical to a marriage; the only difference is the name. But why on earth does the name matter?  On this note I have a surprising source: an article by a gay person against same-sex marriage. From that article:
I don’t understand the reasoning behind the suggestion that civil unions or some other marriage equivalent, with all the benefits of traditional legal marriage, are somehow not good enough. Olbermann seems to be saying that it is only the exact legal label applied to heterosexual unions — actual “marriage” — that will do. But why? What is the reason that it’s not good enough? Allow me to put my Freud hat on.

For gay supporters of marriage, this may be an attempt to force society to recognize and, well, love their love. It’s a way to make up for the rejection many of them felt by their hick Christian families, or their meathead peers in school as a child. The fact is, they will hate you even more if you are allowed to get married. Now, I don’t deny that it is hilarious and delightful to make bible beaters uncomfortable — the idea of a religious government official forced to legally refer to two men as “husbands” puts a smile on my vindictive face — but inflicting pain on one’s enemies alone is not reason to call for gay marriage.
If the purpose of preferring same-sex marriage over civil unions is to force acceptance of the homosexual relationship onto society (or to inflict emotional pain upon one’s enemies), this doesn’t seem like an adequate reason to install same-sex marriage, no matter how much one might hate conservative Christians or consider them intolerant.

Still I think one concern is at least somewhat plausible. If “marriage” can be bestowed upon heterosexual couples but it’s only “civil unions” for same-sex couples, one concern is that this carries the insinuation that heterosexual relationships are considered “better” or “more legitimate” than gay relationships. While the two are legally identical, the term “marriage” has a connotation that “civil union” doesn’t. If same-sex marriages were allowed but the legal equivalent for heterosexual couples were “civil unions,” heterosexual Christians would probably feel slighted. If one wants to adopt the position that the government should remain neutral on the morality of homosexual activity (e.g. when teaching in the public schools) to bestow the title of “civil union” for same-sex couples over “marriage” one should consider the connotations of “civil union” versus “marriage.”  

Is Banning Same-Sex Marriage Discrimination?

Is same-sex marriage discriminating against gays? One could argue that, strictly speaking, it doesn’t discriminate against homosexuals. The prohibition on same-sex marriage applies to everyone regardless of sexual orientation. It would imply, for example, that two heterosexual men couldn’t marry for the purposes of (say) some tax benefits. On the surface then, a law that banned same-sex marriage wouldn’t discriminate against sexual orientation.

In response one could say that it’s like saying banning interracial marriage isn’t racial discrimination because blacks have the same right to marry as whites—namely, the right to marry someone of their own race. Yet interracial marriage is racial discrimination, and thus (somehow) similarly prohibiting same-sex marriage discriminates against gays.

At least without some explanation this doesn’t seem plausible. In one sense banning interracial marriage is racial discrimination because it discriminates who can get married based on the races of the participants. But then same-sex marriage still doesn’t discriminate on sexual orientation; the prohibition is effectively “blind” to the sexual orientation of the participants and discriminates (if anything) merely on the sexes of the two individuals.

One could say that banning same-sex marriage is objectionable for reasons other than discrimination, but for the nonce let’s press further with the discrimination objection. When justifying the assertion that banning gay marriage constitutes discrimination it would be better to cite some specific principle rather than describe a vague comparison with interracial marriage. What principle could one reasonably cite? One could say “People should have the right to marry whoever they want,” and that applying this principle to some people but not others is sufficient to constitute discrimination. Is it? If we applied this principle consistently, outlawing pedophile marriage constitutes discrimination because pedophiles couldn’t marry whoever they wanted. But if pedophile marriages should be outlawed, it would certainly seem that some restrictions on marriage (and therefore certain sorts of discrimination) are sensible.

Another principle one could use is “People should be allowed to marry whomever they want as long as it is between consenting adults” and saying that if this principle is applied for some people but not others then it’s (unfair) discrimination. But if we apply this principle consistently, polygamous marriages should be allowed, and so would a marriage of a father and his adult son.

An Argument Against Same-Sex Marriage

Even if one doesn’t adhere to the “consenting adults should be allowed to marry whomever they want” principle, by my lights if we should legalize same-sex marriage, it’s difficult to find a good reason why we should not also legalize these other marriages. After all, what reason could there be? If same-sex marriage should be allowed, what is so special about the number 2?  Why not also allow polygamous and group marriages?  Yes, incestuous marriages and polygamy are immoral, but aren’t same-sex marriages? Or if certain homosexuals want to legalize same-sex marriage but ban incestuous marriage on the grounds that they think same-sex marriage is morally acceptable but incestuous marriage isn’t, this at least comes close to being hypocritical if such homosexuals say Christians should employ tolerance with respect to same-sex marriage. If those who disagree with the morality of same-sex marriage are supposed to support marital tolerance here, why should conservative Christians be forced to tolerate same-sex marriage between two consenting adults when they think such marriage is immoral, whereas some supporters of same-sex marriage need not tolerate (for example) an adult father-and-son marriage between two consenting adults when they think this marriage is immoral? Why, if we are to be consistent in our principle of marital tolerance, should we deny one consenting adult couple marital rights if we are to grant the other consenting adult couple marital rights?

By my lights, there does not appear to be any good reason to outlaw adult father-and-son marriages if we were to legalize same-sex marriages. If we are asking conservative Christians to practice marital tolerance with respect to same-sex couples, it seems like supporters of same-sex marriage need a reason to not also legalize an adult father-and-son marriage between two consenting adults on pain of hypocrisy (not to mention we ought to have a consistent principle of marital tolerance) if they wish to outlaw it. But what reason is there? No such reason is apparent.

If there isn’t a good reason to outlaw adult father-and-son marriages if we were to legalize same-sex marriages, we can construct the following argument:
  1. If we should legalize same-sex marriage, then we should legalize adult father-and-son, group, and polygamous marriages.
  2. It is not the case that we should legalize adult father-and-son, group, and polygamous marriages.
  3. Therefore, we should not legalize same-sex marriage.
The above argument is deductively valid, i.e. the conclusion follows necessarily from the premises by the rules of logic. Premise 1 seems both plausible and difficult to attack. No doubt some are willing to bite the bullet and reject premise 2, but I’m not quite convinced that premise 2 should be rejected. Some critics say that allowing same-sex marriage risks deconstructing marriage, and I think the above argument suggests they are right.  If same-sex marriage should be allowed, there would appear to be no good reason to not also allow incestuous and group marriages.  So what to do?

My Crazy Idea

My idea is crazy, but it’s the best one I can think of if everyone were willing to go along with it. Here it is: keep marriage, but leave the state out of it in so far as it calls them all “civil unions” whereas heterosexual couples can still get married in a church and call it marriage among their associates and within their own religious community. A similar thing holds for same-sex couples (if they wish). In other words, the state never officially recognizes anyone’s marriage, while keeping the legal contract aspects of marriage (calling this contract a “civil union”) intact, and permitting people to call their relationship marriage among themselves and their community if they so wish. This way, the government remains entirely neutral on the issue of marriage morality.

Personally, if I’m in love and want to get married, I just don’t care all that much whether the state officially recognizes my relationship as long as I can call it marriage within my own religious community etc., just as I don’t care whether the state officially recognizes my relationship with God. Indeed, having the state officially recognize it seems a bit odd and arbitrary to me.

Of course, I realize I’m a maverick Christian on this matter, and that plenty of couples want official recognition of their marriage not just by their religious community but also by the government. Thus I’m not quite in favor of having my idea implemented and ticking a lot of people off. Still, I honestly don’t understand why people think my idea is a bad one. Maybe I’m a bit dense on this issue, but why is it so important for the state to officially recognize a couple’s relationship? If you readers have any ideas, feel free to leave a comment.