Apr 052013

On Sunday’s Philosophy in Action Radio, I’ll answer a question on whether “gay marriage” should be considered a kind of marriage. (Hint: The right answer is “HELL YES.”) In the process, I’ll explain why civil unions might be a step in the right direction, but they’re not an acceptable alternative to legalizing gay marriage.

Lately, along with everyone else on Facebook, I’ve seen a wide variety of arguments about gay marriage… some better and some worse.

From my libertarian friends, I often hear that the government should “get out of the business of marriage” entirely. That view is wrong, for reasons that I explained in this podcast: State Involvement in Marriage. Basically, the state should not give marriage licenses, but rather ought to treat marriage as a private contract. As with every other kind of contract, the govenment provides the basic legal framework — including establishing the meaning of terms, setting defaults for when terms are not specified, establishing standards for consent, and so on. Moreover, the state will have to determine what counts as a valid marriage contract, so that those standards and defaults might be applied, just as it does for employment contracts. That definition of marriage (and other contractual relations) should not be arbitrary, but rather based on the fact of fundamental similarities in the nature of various relationships between people.

What I find particularly objectionable, however, is when people refuse to support gay marriage due to this view that the state ought to “get out of the business of marriage” entirely. The fact is that legalizing gay marriage would rid our legal system of a major injustice, without impeding the fight for a fully contractual system of marriage. To oppose the former because you want the latter is rather like saying, “I’m opposed to ending brutal corporal punishment of children in government schools because I’m opposed to all government schools.” Political changes that are for the better — that genuinely advance the cause of liberty — can and should be supported, even if not immediately the ideal.

Even worse, however, is the outright opposition to gay marriage that I’ve seen from some supposed Objectivists, particularly in this blog post and its comments. The arguments offered are so weak as to be laughable. Ultimately, they’re based on negative judgments of homosexuality, morally and psychologically, and those judgments are rooted in nothing more than repugnance. (That’s not an inference: it’s quite explicit from the blog post and its comments.)

Thankfully, that kind of irrational bias against gays is far, far, far less common among Objectivists than in years past. Still, I hate to see it… ever.

Update: As promised, I surveyed the various quasi-secular arguments against gay marriage on the 7 April 2013 episode of Philosophy in Action Radio. If you’ve not yet heard it, you can listen to or download the podcast segment here:

For more details, check out the question’s archive page. The full episode – where I answered questions on the validity of gay marriage, the is-ought gap, the aftermath of a friendship, mixing politics and romance, and more – is available as a podcast too.

  • http://www.facebook.com/kyle.haight Kyle Haight

    The best secular argument I’ve seen against government recognition of gay marriage can be summarized as follows:

    1. Long-term monogamy is empirically the best structure for raising children. Children raised by broken families have a significantly greater risk of developing self-destructive behaviors that have substantial social costs.

    2. The government has an interest in minimizing these social costs. One way for it to do so is to provide incentives to potential breeders to enter into long-term monogamous relationships.

    3. Governmental recognition and support of such long-term monogamous breeder relationships is what marriage (legally) is.

    4. Homosexual relationships, by definition, have no potential for children and therefore do not require government support or recognition.

    Conclusion: government should recognize heterosexual marriage but not homosexual marriage.

    This argument is not religious, nor is it obviously built around anti-gay animus. Nevertheless it fails for a number of reasons that I would hope are obvious.

  • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

    I’ll admit Diana that I’m opposed to it, but not for any strong reasons. I do have a few concerns about it.

    1. I’ve noticed that some of the people who advocate for gay marriage are the same sort of people who sound gleeful when they repeat statistical studies of declining marriage. This makes me wonder about their motives.

    2. Marriage as an institution has nothing to do with love or passion but rather with the perpetuation of a property estate and the custody of children. The former is already within the power of gays without marriage (albeit in a more time-consuming manner), and the latter is something they can’t have together without adoption or surrogates of some kind. Given this understanding, I’m curious about what purpose marriage would serve for them, except as a time-saver for the estate issues.

    3. It is in fact for the sake of the offspring of such unions (primarily) that divorce was difficult for a long time (as I understand it). No one wanted a mother left in the lurch with her children and no provider (recall that the institution developed well before the Industrial era, and most of the necessary work to put food on the table was significantly more difficult for women than for men).

    I have a few others, but most are along those lines. But there is one more I’d like to mention.

    #. I’ve heard of studies indicating that while homosexual parents are not BAD for children (they are certainly far better than either a single parent or an orphanage), and yet the authors of these studies get called bigots for even asking the question in the first place. In the same way, people like Thomas Sowell and former Vice Pres Quale get called sexist bigots for noticing that single mothers (note: single mothers are single BY CHOICE. Widows and divorcees are not included in this category) are often singularly incapable of competently raising sons (hence the crime rate among young black men, far out of proportion to their share of the population and astonishingly higher than it was before black families began coming apart at the seams following the establishment of the Great Society programs), and even their daughters often show deleterious effects from the lack of a father.

    So I suppose that is one of my primary reasons. I have concerns that fundamentally changing an institution that (to my knowledge) has existed since before the first recorded religion, probably since the earliest stages of human civilization, may have unforeseen side effects, and that we ought to proceed as slowly and carefully as though we were performing open-heart surgery on a beloved parent. And for this crime I am decried as a bigot, a homophobe, a fascist, and other horrible things too. My concerns are not to be heard, I am told, because I am evil for having them.

    Ayn Rand noted that common law did occasionally get things right. Thomas Sowell noted that even when we might suppose it got them wrong, it is manifestly dishonest and downright stupid to suppose that our ancestors did things for no good reason, even if those reasons are not apparent to us (and thus I disagree with Ayn Rand a little: I think the common law got things right more often than she thought).

    I think Jefferson once noted that a long-standing institution takes on the character of good (or at least normal) merely because its old, and thus some fight to prevent its change (such as slavery). But that doesn’t mean change is without cost, nor does it mean we should suppose that all opponents of change do so out of malice, nor should we deride their concerns as meaningless even if they are voiced out of malice.

    And finally, people who believe I should be killed for the crime of existing support gay marriage. I consider opposing it until they calm down fair play.

    • http://connect.freedomworks.org/node/45216 BruceMajors4DC

      Leftist heterosexual Ted Rall argues that the gay marriage movement is a right-wing conspiracy: http://www.rall.com/rallblog/2013/03/27/syndicated-column-gays-and-lesbians-sucked-in-by-the-far-right

    • darkwingduckie7

      1. There are bad eggs on both sides… do not judge all by the noise made by some (and I’ll try to do the same for your side).

      2. It is not just property and real estate and children. First, one can’t get all the benefits of marriage by seeing a lawyer. The SCOTUS case is about being with someone for 40(I think) years and then having to pay an inheritence tax on joint property, something a heterosexual married couple would not need to worry about. Then there are the benefits for veterans as well as family housing and easier to follow a military spouce (for example the military helping transfer professional licenses to another state when the military spouce is transferred). Then there are medical benefits through corporation, social security benefits after death, and about 1100 more federal benefits that no lawyer can help. And the stuff that getting a lawyer should solve has proven time and time again to be inadequete. Same-sex couples even with the power of attorney have problems getting into hospital rooms in a timely manner, not receiving the bodies or deceased partners (some even have stories how because the families didn’t approve of their relationships, they didn’t get to attend the funeral). It is not some made up or theoretical problem… just listen to LGBTs share their personal stories. The same with inheritence and property, wills have been contested by family members and in many cases have won over life partners.

      Now children… whether same-sex marriage is legal or not, that doesn’t change that LGBTs have children already. Lesbians can do it through sperm donation, gay men through surrogacy, some come through rape (like my partner’s baby), and bisexuals even have kids the “traditional” way. These families exist, have existed, and will exist no matter the marriage status and they need protection.

      Now the adoption issue… I have opposite-sex couples who have adopted and the reality of our system is that infants and babies are hard to get. My friends had to make profiles, have the details about their families exposed, and then wait for a pregnant woman to choose them as the adoptive parents. All the law would do in this case is add same-sex couples as a choice for these mothers (who can choose based on any criteria they wish). There is always more people wanting infacnts and babies then there are infants and babies avaliable. There is an abundance of kids 8+ and kids with physical and mental issues that need parents badly. However, not as many families want to adopt them. Even if we added all the same-sex couples willing to adopt these kids, there will always be more kids needing a home than parents wanting them. Also, older kids have a say in whether they want to be adopted by a couple and they could veto a same-sex couple if they wished (or opposite-sex couples as they wish). And international adoption would still be ruled by international laws.

      Lastly, have you ever talked to a child raised by same-sex parents? Please do before you judge. And as far as studies go, most studies say there is no difference if you compare similar opposite-sex and same-sex families. The problem you have with studies such as the recent Texas study is that it compares opposite-sex married couples with kids to same-sex couples without the ability to protect themselves with marriage who have kids where many of the kids are the results of broken homes where they tried to live as heterosexuals which ended up in divorce (which is trully harmful to children). I have seen the fallout from marriages where a straight person married a gay person. People need love and devotion to each other to be able to make it through the rough spots. A marriage based on someone pretending to love so they could have a family is more likely to fall apart causing a lot of damage. And the damage is double when that same person finally decided to come out. It is a marriage based on lies and even more harmful to marriage and families than same-sex marriage ever could (if even at all).

      3. You can’t compare single mothers to two parents. Just by being a part of a couple, having two people makes everything easier such as having two incomes, two parents to discipline or go on vacations with, twice the attention, etc. That is like comparing apples to oranges.

  • christopolis

    the poor polygamists, they need a new marketing director.

  • sajid1760

    “I have concerns that fundamentally changing an institution that (to my knowledge) has existed since before the first recorded religion, probably since the earliest stages of human civilization, may have unforeseen side effects, and that we ought to proceed as slowly and carefully as though we were performing open-heart surgery on a beloved parent. And for this crime I am decried as a bigot, a homophobe, a fascist, and other horrible things too”

    But this isn’t true. Accepting the legitimacy of homosexual love does not change the institution of marriage in anyway–it just adds to it. Just as there are two genders–male and female–both of which are subsets of the term human, there can be two forms of marriage viz. homosexual and heterosexual marriage. Heterosexual love need not be the same as homosexual love and the two marriages need not be the same either.

    Also, homosexuals can choose to live in many different ways but for some weird reason (perhaps because they are people?) many choose to be involved in monogamous relationships that involve mutual commitment to each other and to any offspring they choose to raise. Since the term for a relationship like this is marriage, why not call it marriage? What else would you call it?

    • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

      Considering that gay marriage has no historical parallel – at all, as far as I know; no civilization has ever considered extending the institution to cover same-sex unions until about 20 years ago – that sounds like it would constitute fundamental change to me. As I described, fully half the reason the institution exists is because of the expectation of children FROM THAT UNION. Gay couples do not face this issue. And the other half, property, they don’t need marriage for.

      As for what they would call it, I have no issue with calling it marriage as such. Nothing stops them from holding a private ceremony, cohabitation, and calling each other husband/wife/whatever pet names they would use. None of that involves anyone but the two of them. But when you ask for state recognition, that’s a different issue. Now you are asking for other people to approve it.

      One thing I am unequivocably against is any kind of FEDERAL involvement in marriage, including in divorce (this is primarily for constitutional reasons). And if individual states want to amend marriage this way, fine.

      As I said, I wouldn’t even mind this change so much if the advocates weren’t so overtly Leftist about it. But when people like me voiced concerns about the social costs of dramatically expanding welfare a-la the Great Society program, we were denounced as greedy and elitist. Long term, we were proven right to have been concerned. People like me said the same thing about the 16th Amendment and the Federal Reserve Act; we were denounced the same way. Law and order? FASCIST/NAZI/RACIST! Affirmative action is bad? RACIST/SEXIST/BIGOT!

      Basically, I’ve had it up to here with people who approach social issues this way. I’ve had it with people like this who substitute name-calling for argument (what Rand called argument from intimidation). I’ve had it with people who advocate for things with no consideration as to what the cost might be, and more importantly no interest in even finding out what that cost might be or who will have to pay it.

      These are the same people who wanted women in combat positions (yes, frankly, this is a stupid idea. Pilots, yes. Infantry, no). They are the same people who thought that the opinions of soldiers who actually go into battle, who shower and sleep in close quarters with their comrades, shouldn’t be allowed an opinion on DADT. The costs of their ideas (even the fact that their ideas HAVE costs) don’t interest them. And I’ve had it.

      • http://connect.freedomworks.org/node/45216 BruceMajors4DC

        That’s not true. Gay marriage has existed for decades if not centuries. Gay people in passionate and committed relationships have always considered themselves to be married, and so have some of their friends and relatives. In some cases women or men cross dressed and assumed the other gender to make their marriages legal. That state established churches and government courts defined their marriages not to be marriages is irrelevant. Why not just argue that that having churches be separate from the government is unprecedented in human history (prior to 1776) and so must not be allowed, since it is legislating from the bench, judicial activism, and radical social engineering?

        • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

          If you’ll read what I said again, I DID NOT SAY that something unprecedented should not be tried. I said that something unprecedented is likely to have unforeseen consequences and thus should be approached slowly, with care, and without hyperbole. Certainly without pretending that it isn’t going to have negative side effects (all social changes do, we just hope that they are tolerable, and lesser than the positive changes).

          One potential negative side effect of the SCOTUS ruling in favor of gay marriage will probably be attempts to force churches opposed to same-sex unions to conduct their marriages anyway, a clear violation of religious freedom AND the separation of church and state, based upon a deliberate misreading of the 14th Amendment (which applies to actions BY THE STATE, not by private entities such as churches). I am an atheist to the core, but if a church doesn’t want to host same-sex marriages, they shouldn’t have to.

          Besides which, what you describe is either people going around the law, finding loopholes, or else dispensing with legal contracts altogether. That is not what I said: I said no civilization had ever extended the institution to cover same-sex marriage until very recently.

          You also mischaracterize the nature of state churches. The argument was that forcing people to give money to an organization they do not support is wrong (legal support of tithing), and further that taxing them and then giving their money to said organization is similarly wrong. They also said that because faith is a personal matter, so too is church membership. They were INDIVIDUALISTS first: otherwise the separation of church and state could never have been accomplished.

          What gays are asking for here is not to be left alone; they are asking for legal recognition. This falls under the dominion of law and politics, which means they are asking for electorate approval. You can’t use the 14th Amendment or any other “equal treatment” clause in either the COTUS or any of its amendments precisely because none of them were written with homosexuality in mind (the SCOTUS has ruled on this kind of issue before). Thus they are asking for something to CHANGE from how it is.

          That’s fine as far as it goes. If the advocates acknowledged the reality of what they were asking for, and stopped referring to all of their opponents by means of name-calling, I probably wouldn’t be so opposed to it.

          I also find it highly suspicious that the party championing gay rights now were the ones leading the fight against black rights only so long ago (with actual KKK members being elected as members of this party elected as recently as 2007). I will not apologize for being suspicious of their motives.

          And finally, any characterization of this political fight as being similar to the CRM is hyperbole to the core, and dishonest to boot. The rights that both black and white activists were fighting for had already been directly guaranteed under the 13th, 14th and 15th Amendments. They were merely insisting that the Amendments be followed in spirit in addition to being followed in letter.

          If Matthew Shepards were being dragged behind trucks on the order of 100 per year, and their attackers routinely acquitted by bigoted juries (or the police and DAs simply refused to investigate or indict on a regular basis), they might have a parallel. If the law forced them to use “separate but equal” facilities, they might have a parallel. If attempts to host a Gay Pride parade were met not by protestors with signs and petitions but rather with dogs, riot police and fire hoses, they might have a parallel. But Shepard’s killers were being considered for the death penalty before they accepted a plea bargain of multiple life sentences. The hate crime legislation that resulted from that trial is more likely to condemn manifestly innocent men than to accomplish anything useful. And gay pride parades, often with pornographic content, are routinely held in major cities (see blogger Zombie’s photoessay on the “Up Your Alley” fair in SF http://www.zombietime.com/up_your_alley_2008/part_1_full/index.php WARNING! NSFW!).

          I don’t respond positively to being yelled at. I don’t respond positively to violence or name-calling. If they can’t be civil with those who have concerns about their proposal, I’m not going to even consider their ideas on general principle. I understand their behavior towards the Westboro Baptist “GOD HATES FAGS” types (I only note that the leaders of that church are apparently Democrats), but painting all of their opponents with that brush does not help their case.

          • http://connect.freedomworks.org/node/45216 BruceMajors4DC

            Democrats don’t champion gay rights, anymore than they championed abolition. They show up later, after Log Cabin Republicans and libertarian Republican laywer Ted Olson and the CATO Institute and libertarian and probably Objectivist hedge fund managers in New York fund campaigns and craft law suits. To be sure there are also people who vote for Democrats at Lamba Legal Defense Fund and the National Center for Lesbian Rights who craft these law suits, but the Democratic Party and their spokespeople appear after public opinion changes and law suits are one, claiming credit, asking for money (the GayTM as the GOProud people call it), and trying to get votes through scaremongering.

            And the First Amendment is more relevant than the 14th. You want to state to define “marriage,” a sacrament of the church, so that certain churches’ ideas about it are state approved and other churches that do not think it is the “traditional” version of marriage, are not state approved. That is establishing a state church, or hierarchies of approved and disapproved state churches. (Blogger Cynthia Yockey first made this argument http://aconservativelesbian.com/2011/06/25/conservative-arguments-for-gay-equality/).

            You are correct gay statists will attempt to regulate everything from education to adoption and subsidize everything from fertility treatments to transsexual surgery. The fact that they will do this does not mean gay people do not have the right to enter into marital contracts, anymore than bad behavior from statists of various ethnic or racial groups means their rights to contract or property should be disregarded.

          • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

            “You want to state to define “marriage,…”

            I said no such thing, and nothing I did say could be justly interpreted that way. Marriage is ALREADY defined a certain way, by common law first before by church and then state.

          • http://connect.freedomworks.org/node/45216 BruceMajors4DC

            But gay people and their friends of referred to themselves as being married for decades if not centuries. So it is incorrect to say the word marriage means a man and a woman only. And it is clear that if you are defining in terms of essential characteristics, two committed people in love sharing a life and sexual union and wanting to raise children are essentially similar, whether they are gay or straight or fertile or not.

          • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

            You missed something in your definition of essentials.

            What you’ve described is a couple in a committed long-term relationship. What makes it a MARRIAGE? The law.

            Marriage creates not merely romantic and moral obligations but LEGAL obligations between partners. This would have been so even in tribal societies (although their foundation of law might be “what the chief says”). This is the primary difference between a marriage and a couple: the interposition of a legally enforceable contract of obligations between partners.

            This is one area in which I sympathize with conservatives: men and women are different. They are as different now as they were 10,000 years ago, and for most of that time their ROLES in both society at large and in a marriage were DRAMATICALLY different. This had as much to do with the differences in temperament and physical capacity as it had to do with their plumbing and reproductive roles. Industrialization has dramatically reduced the importance of the second, opening up entire fields to women seeking work that were closed before (sometimes due to nothing but a lack of muscle mass, such as construction work).

            Since marriage as we know it largely came about as a common law institution, these differences would have been the structure upon which the institution was laid. And thus we have the modern body of case-law regarding marriage and divorce disputes.

            Much of existing case-law wouldn’t really apply to a gay couple at all; marriage affects men and women differently because the differences I mentioned (and every study I’ve seen indicates that marriages work better when spouses are not competing in their marriage roles, however they are divided) won’t apply the same.

            This is not an argument against gay marriage of course; agreed. All it is is a historical record of marriages and divorces, the entirety of which is drawn from male/female, nominally heterosexual couples. Nothing supposes we couldn’t begin building the proposed body of case-law that same-sex marriage would require. What it DOES mean, however, is that I was right: gay marriage IS a recent institutional innovation, and extending the existing institution to cover it WOULD constitute a redefinition.

            If for no other reason that to underscore the fact that existing case-law wouldn’t be very applicable to same-sex couples, a different name for this new institution might be warranted (such as the proverbial “civil unions”).

          • http://connect.freedomworks.org/node/45216 BruceMajors4DC

            Nope. I shouldn’t even reply to this line of Alice in Wonderland playing with words to which you anti-gay nominalists are resorting but you are wrong. Marriages existed before there were laws and governments. Law even exists before there are governments. That a government codifies laws, or even a religious movement promulgates laws, that attempt to promote a partisan definition of a word doesn’t change that to which it refers. There have always been gay couples who were married, even before there were marriage laws. There are gay couples in the animal kingdom. If there was an apocalypse and there were only scattered survivors, even only two, and there was no government and no law, there could still be marriage(s). You might as well argue that there is no parenthood without public schools, because parenthood requires for its definition the existence of truancy law.

          • John Pryce

            Again, no. Marriage as such does not exist without law – at minimum, common law. Romantic pair-bondings ARE NOT MARRIAGES as such. Marriage IS a legal institution, albeit one that precedes all known governments or civilizations, and was probably founded in tribal societies.

            Marriage deals with ENFORCEABLE contractual obligations to other people. In and of itself it has nothing to do with love or romance (hence the history of political arranged marriages. In certain cultures, love in an arranged marriage was even frowned on – notably medieval Japan). There certainly have been gay couples throughout history; I have no doubt of that.

            Laws also do not exist apart from SOME KIND of governing structure. Law requires AT MINIMUM both codification and enforcement mechanisms. Governments can be as simple as tribal leadership, or as ridiculously complex as the USSR. A community of 20 people organized enough to have law, even if it’s as simple as a council in which all community members vote, IS a government. It has little resemblance to the national governments that we know, but it is a government all the same.

    • http://www.facebook.com/people/John-Pryce/100001075335339 John Pryce

      Here’s my position. I don’t agree with everything this guy says, but he does a good job of listing some of my concerns and issues.

  • http://connect.freedomworks.org/node/45216 BruceMajors4DC
  • James

    Kyle Haight: You’re right, those are secular reasons. They are also flagrant social engineering, no different from federal “incentivizing” of home ownership and certain business models and retirement funds and the rest. The government is trying to make us live the way they chose. Why is this bad when they do it with soda, but acceptable when they do it with marriage?

    Secular marriage (the only kind under discussion–religious are of course free to be discriminatory morons if they so choose) is, or should be, a contract between two individuals. Marriage as we understand the term started out as a purely economic issue, little different from the merger of two companies (for reference, see “Marriage and Family in the Middle Ages”). Viewed in that light, the marriage contract is fundamentally no different from any other contract in terms of the government’s role (ie, enforcing it and keeping records of it). This is an issue of contract law; to view the homosexual marriage debate in any other context is to drop the proper context. And no sane person believes that the right to enter into a contract should be abridged based on sexual orientation anymore. If a homosexual can form a business partnership with someone else, for the same reasons the homosexual should be permitted to enter into a marriage contract with someone else. Certain clauses are standard in all contracts, and marriage contracts would be no exception. Certain clauses are necessary in certain types of contracts, and again, marriage contracts would be no exception. These will of course include things like end-of-life decisions, custody of children (homosexuals CAN have children–if nothing else, artificial insemination, adoption, and the like are possible now), visitation rights (in ERs and the like), etc.; stuff that anyone in a committed reliationship can expect their partner to take care of, and which SOMEONE needs to take care of. (These issues are, oddly, never discussed in this debate except by people who have experienced the difficulty in dealing with these issues outside of marriage.) Dr. Hsieh touched on this in her podcast; the details are an issue of contract law, not ethical philosophy.

    As far as social costs go, when you screw up you have to fix it, even if fixing it is uncomfortable. We, as a society, screwed up. We are obliged to fix it. The fact that it will inconvenience some people in no way permits our government to continue to deny the right to enter into contracts to people based on sexual orientation.

  • https://philosophyinaction.com/ Diana Hsieh

    If you haven’t heard it already, check out Sunday’s question on the validity of gay marriage, where I showed just how idiotic the quasi-secular arguments against gay marriage are: https://philosophyinaction.com/archive/2013-04-07-Q1.html

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