Tag Archives: marriage

Not conservative, reactionary: The flawed case against same-sex marriage

Russell Blackford, University of Newcastle

The time has come for Australia to provide for same-sex marriages. This would reflect the countries with which we compare ourselves, including the US and the UK, and it would acknowledge the contemporary meaning of marriage in Western liberal democracies.

As I write, however, progress has stalled. It remains to be seen whether Australia will have a plebiscite on same-sex marriage in early 2017. Federal parliament is considering the issue, and political parties are negotiating. Something that ought to be easy has become very difficult.

A plebiscite is unnecessary, since the federal parliament has undoubted power to amend section 5 of the Marriage Act to change the definition of “marriage”. That is exactly what happened when the definition was last altered by parliament, as recently as 2004, to exclude the possibility of same-sex marriages. On that occasion, the Howard government’s action did not need a specific vote by the public.

Michael Jensen’s case against same-sex marriage

You need to squint pretty hard to see what arguments can be put against same-sex marriage in Australia without relying on religious morality or appealing to bigoted dislike of gay men and lesbians. On 28 May last year, however, Michael Jensen wrote an op-ed piece for The Drum to set out what seems to be a core social conservative argument.

It’s worth dusting this off to take another look. If a plebiscite does go ahead, whether next year or at any other time, something like Jensen’s case will likely be put in support of a “No” vote.

Jensen almost pleads with readers not to regard him as merely a bigot. In fact, I know Michael Jensen – albeit very slightly – and I doubt that he harbours any secret hatred for gay men and lesbians. The problem isn’t bigotry in the ordinary understanding of that word, and I understand Jensen’s concern that he might be simply demonised. Too much of that goes on in public debate.

At the same time, when I read and re-read his argument as published by The Drum he seems to be living in an earlier era. Central to the argument is that providing for same-sex marriage would alter the very meaning of marriage as a social institution. I can understand this concern up to a point, but the horse has bolted.

In a trivial sense Jensen is correct. The necessary alteration to section 5 of the Act would – obviously – change the definition of marriage in Australian federal law. But of course, that also happened in 2004.

To be fair, Jensen might say that the 2004 amendment to the Marriage Act merely clarified something that had previously been understood. By doing so, it shifted the onus to anyone wanting to introduce a new concept of marriage into the law. Let’s grant this point for the sake of argument. In the end, I doubt that it really matters.

At any rate, Jensen could plausibly claim that the understanding throughout Christendom, during the Middle Ages and continuing into the emergence of European modernity, was of marriage as a heterosexual and monogamous relationship. This idea of marriage was thus the one exported to British colonies, such as those founded in Australia during the eighteenth and nineteenth centuries.

Jensen could then go on to emphasise, as he does in his contribution to The Drum, that marriage was, at least in this European and Christian tradition, about the union of an individual man and an individual woman who intended to have children.

However, the fact that this was a traditional European and Christian view doesn’t get us far. At the heart of the current controversy is whether such a view should prevail in future.

Religion, reasons, rhetoric

Jensen needs to say more, and of course he does. He claims that he is not putting a religious position, but if it’s not religious what is it? He employs some esoteric language that seems astonishingly contrived in a secular context. He writes, for example, “A child is a tangible expression of our sexed twoness.”

What, here on Earth, does that mean? As far as I can decipher it, Jensen is stating that we are a species which reproduces sexually (unlike, say, protozoa and certain starfish). Fine, but no one I know of disputes this.

Putting the point in a strange way is presumably meant to give it a kind of moral overlay or resonance, as if the facts of sexual reproduction among mammals are not merely established by science and common experience but also possess a metaphysical or theological oomph. If so, that’s not a claim Jensen can rely on while also denying that he is arguing from a religious viewpoint, or at least something very like one.

Jensen continues: “To remove the sexual specificity from the notion of marriage makes marriage not a realisation of the bodily difference between male and female that protects and dignifies each, but simply a matter of choice.”

Again, it’s hard to get my secular head around this sentence. But here’s my best attempt: our species, Homo sapiens, is (leaving aside a small percentage of intersex people) a fairly obviously sexually dimorphic one. Or more straightforwardly still: men and women have some significant biological differences. Some people may deny that we’re a sexually dimorphic species, but if so their number is … small. Again, this point isn’t news to anybody who’s not overthinking it.

But nothing follows automatically, from these familiar biological facts, as to whether or not the social institution of marriage should be available only to couples consisting of one heterosexual person from each of the two standard sexes. If we are capable – as we obviously are – of setting up the institution of marriage in a way that caters to personal choice more flexibly, why not? And how is human sexual dimorphism – or how are men and women – less protected if and when we do so? (Notwithstanding same-sex marriage, there will still be men and women unless something very drastic is done via genetic technology!)

It’s also true, of course, that we are a species whose members have varied sexual orientations. So, why shouldn’t our social institutions take that fact into account into some way?

Before I leave the topic of human sexual dimorphism, we need to be careful just how much weight we give to it in policy deliberations. It’s not entirely irrelevant to policy that men and women really are different in certain ways. But at this stage of human history, it is often wiser, and more to the point, to accentuate the similarities between us. Otherwise, it becomes tempting to give the differences an exaggerated emphasis (and, indeed, to be too quick to make assumptions about just what the differences are).

In particular, there’s plenty of work still to be done in response to the key feminist insight that men and women are cognitive equals. Doing that work is a good way to “dignify each”. In the past – and even now – the contrary assumption has unjustly excluded women from a very broad range of social positions and roles.

Though Jensen is not a bigot, and although he attempts to be civil and scrupulous, he can be criticised for some of his rhetoric. He approaches the role of propagandist when he states: “Instead of the particular orientation of marriage towards the bearing and nurture of children, we will have a kind of marriage in which the central reality is my emotional choice. It will be the triumph, in the end, of the will.”

The last sentence of this really adds nothing of substance, but it sounds very sinister: “Oh no! It will be … the triumph of the will!”

More seriously, although I don’t know whether this was intended, Jensen’s wording evokes the spectre of Nazism via the title of Leni Riefenstahl’s 1935 propaganda film, Triumph des Willens (“Triumph of the Will”). Whether or not Jensen’s (or my) readers are familiar with Riefenstahl’s brilliant, histrionic, terrifying film, a Nazi-like tinge to the phrase “triumph of the will” has entered the English language. (If not, what exactly is so bad about triumphs of human will?)

It would be helpful if all parties to the same-sex marriage debate managed to avoid suggestions that good-faith opponents are Nazis, resemble Nazis, or have anything to do with Nazis.

Once the rhetoric is stripped away, why shouldn’t my decision to get married, or not, reflect my values and choices, “emotional” or otherwise? Jensen’s suggestion here, that there is something wrong with individual choice, is highly illiberal. We might wonder why the law should override individual choices unless some kind of significant harm to society can be demonstrated. As to that, Jensen himself seems to accept that no such harm is in the offing. He states, early in his op-ed, that introducing same-sex marriage will not be “the end of the world for me.”

As best I can reconstruct it, then, Jensen’s argument against same-sex marriage comes down to a claim that European Christian marriage (and perhaps marriage in other cultures) traditionally mirrored and represented the fact that Homo sapiens is a sexually reproducing and sexually dimorphic species. That is, marriage involved opposite-sex couples who intended to have children via (of course) sexual reproduction. Therefore, the argument seems to conclude, the institution of marriage should always be like that.

This simply doesn’t follow as a logical argument. Something more must be being assumed, but if so Jensen doesn’t explain what it is.

Living in the past

A problem for Jensen and others who share his views is that the nature of marriage has already changed. It is already a matter of “emotional choice” whether or not to get married. It is already possible, furthermore, to have children outside of marriage without the traditional stigma of illegitimacy.

Nothing prevents a heterosexual couple from having a traditional sort of marriage, oriented mainly to children, if they want one, but already this is an option rather than a social obligation. Already, many straight couples get married with no intention of having children. They have various personal reasons. Some might find the status of marriage legally and socially convenient, and they might find the idea of marriage romantic – yet not connected, for them, with procreation and child rearing.

Far from being socially disastrous, such developments in freeing up the nature of marriage have given many people more ability to live as suits them best. With highly consequential life decisions and plans such as this, one size does not fit all.

A more accurate picture than Jensen’s of recent and current social change is that same-sex marriage is not putting pressure on the institution of marriage to become something different from what it was. At least in the main, the causal arrow goes in the opposite direction.

That is, same-sex marriage became more thinkable in the last few decades partly because marriage itself was already changing in ways that made the idea of same-sex marriage seem more coherent and attractive.

Over the past two centuries, and increasingly over the past fifty or so years since the Sexual Revolution, the institution of marriage has been transformed. Marriage, as once understood, was a form of social, and especially sexual, control. To be more specific, it especially controlled the sexuality of women. Among the wealthier classes, it assisted economic ends such as estate planning. Marriage was often far from a romantic or companionable relationship.

But in Western democracies, at least, marriage has evolved for the better. The current ideal of marriage is an equal union between two people, involving love, sexual and other intimacy, and companionship. We have, moreover, abandoned the concept of marriage as a kind of licence for sexual experience, which was otherwise forbidden by morality, if not by law; and we increasingly understand marriage as not necessarily including children. Marriage has become a kinder and far more flexible concept.

The institution of marriage retains deep emotional significance for most Australians. But our predominant understanding of marriage is now one from which gay men and lesbians cannot reasonably be excluded. It’s time to let them in, but this is not meant as a mere slogan. Marriage has changed until it no longer makes sense to keep gay couples out.

Conservatives should, as I’ve suggested in the past, take comfort that the institution of marriage has survived the social upheavals of the last half-century, and that so many couples, including gay and lesbian couples, still want to participate in it.

However, arguments against same-sex marriage – when not relying on religious morality or simple bigotry – require that we view the institution as something that it no longer is and cannot easily be again.

Arguments such as Jensen’s are not apt for conserving marriage as it has become widely understood. They are arguments for turning back the clock to earlier ideas of marriage. Such arguments are losing their appeal in Australia, and especially any appeal to younger Australians.

Once more, I don’t call Michael Jensen a bigot and I don’t wish to smear or silence him. But he and others with similar views are living in the past. In that way, their arguments are more reactionary than conservative.

Russell Blackford, Conjoint Lecturer in Philosophy, University of Newcastle

This article was originally published on The Conversation. Read the original article.

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The Kindle version of my book about the arguments against same sex-marriage will be free on Amazon (all countries) from February 23, 2015 to February 27, 2015.

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Utah, Same-Sex Marriage & The Procreation Argument

Gay Couple with child

Gay Couple with child (Photo credit: Wikipedia)

As a general rule, I would contend that if something is morally wrong, then it should be possible to present non-fallacious and reasonable arguments to show that it is wrong.  I would also probably add that there should be actual facts involved. I would obviously not claim that the arguments must be decisive—one generally does not see that in ethics. While people continue to argue against same sex marriage, the arguments continue to be the usual mix of fallacies and poor reasoning. There is also the usual employment of “facts” that are often simply not true.

In the United States, the latest battle over same-sex marriage is taking place in Utah. The state is being sued on the grounds that the amendment that forbids same-sex marriage is a violation of their rights. The lawsuit certainly has merit—a state does not get to violate constitutional rights even if many people vote in favor of doing so. As such, a rather important legal question is whether or not same-sex couples’ rights are violated by this law.

Utah is following the usual model of arguing against same-sex marriage, although they have at least not broken out the argument that allowing same-sex marriage will lead to or is equivalent to a person marrying a goat.

As might be expected, they made used of the usual pair of fallacies: appeal to tradition and appeal to common practice by claiming that defining marriage as being between a man and a woman is correct because it is “age-old and still predominant.”

Utah also tried the stock procreation gambit, with an added bit about the state’s interest: “Same-sex couples, who cannot procreate, do not promote the state’s interests in responsible procreation (regardless of whether they harm it).” Utah has also made use of the boilerplate argument about “responsible procreation” and “optimal mode of child rearing.”

Same-sex marriage is thus criticized on two grounds in regards to “responsible procreation.” The first is that same-sex couples cannot procreate naturally. The second is that same-sex couples will fail to provide an “optimal mode of child rearing.” To deny same-sex couples the right to marry because of these criticisms would require accepting two general principles: 1) marriage is to be denied to those who do cannot or do not procreate and 2) people who are not capable of the “optimal mode of child rearing” are to be denied marriage.

The first principle entails that straight couples who do not want children or cannot have them must also be denied marriage. After all, if an inability (or unwillingness) warrants denying same-sex couples the right to marry, the same would also apply to different-sex couples.

This principle would also seem to imply that couples who use artificial means to reproduce (such as in vitro fertilization or a surrogate) must be denied marriage. After all, same-sex couples can use these methods to procreate. Alternatively, if different-sex couples can use these methods and be allowed to marry, then same-sex couples who procreate would thus also be entitled to marriage.

The principle would also seem to entail that all married couples would be required to have at least one child, presumably within a specific time frame to ensure that the couple is not just faking their desire (or ability) to have children in order to get married. This would certainly seem to be a violation of the rights of the parents and a rather serious intrusion of the state.

The second principle would entail that straight couples who are not optimal parents must be denied marriage.  This would seem to require that the state monitor all marriages to determine that the parents are providing an optimal mode of child rearing and that it be empowered to revoke marriage licenses (much like the state can revoke a driver’s license for driving violations) for non-optimal parents. Different-sex parents can obviously provide non-optimal modes. After all, child abuse and neglect are committed by different-sex couples.

While I do agree that irresponsible people should not have children and that the state has an obligation to protect children from harm, it seems absurd to deny such people the right to marry. After all, not allowing them to marry (or dissolving the marriage when they proved irresponsible) would hardly make such people more responsible or benefit the children. Now to the matter of the state’s interest.

For the sake of the argument, I will grant that the state has an interest in having people reproduce. After all, the state is just a collection of people, so if there are no new people, the state will cease to exist. Of course, this also would seem to give the state an interest in immigration—that would also replace lost people.

This interest in procreation does not, however, entail that the state thus has an interest in preventing same sex-marriage. Allowing same-sex marriage does not reduce the number of different-sex marriages—that is, there is not a limited number of allowed marriages that same-sex couples could “use up.” Also, even if there were a limited number of allowed marriages, same-sex couples would only be a small percentage of the marriages and, obviously enough, marriage is not a necessary condition for procreation nor responsible procreation. That is, people can impregnate or be impregnated without being married. People can also be good parents without being married.

In light of these arguments, the procreation argument against same-sex marriage is still clearly absurd.

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Slippery Slope, Same Sex Marriage, Goats & Corpses

Gray-GoatWhile same-sex marriage seems to have momentum in its favor in the United States, there is still considerable opposition to its acceptance. This opposition is well stocked up with stock arguments against this practice. One of these is the slippery slope argument: if same-sex marriage is allowed, then people will then be allowed to marry turtles, dolphins, trees, cats, corpses or iPads.  Since this would be bad/absurd, same-sex marriage should not be allowed. This is, of course, the classic slippery slope fallacy.

This is a fallacy in which a person asserts that some event must inevitably follow from another without any argument for the inevitability of the event in question. In most cases, there are a series of steps or gradations between one event and the one in question and no reason is given as to why the intervening steps or gradations will simply be bypassed. This “argument” has the following form:

1. Event X has occurred (or will or might occur).
2. Therefore event Y will inevitably happen.

This sort of “reasoning” is fallacious because there is no reason to believe that one event must inevitably follow from another without adequate evidence for such a claim. This is especially clear in cases in which there are a significant number of steps or gradations between one event and another.

In the case of same-sex marriage the folks who claim these dire results do not make the causal link needed to infer, for example, that allowing same-sex marriage will lead to people marrying goats.  As such, they are committing this fallacy and inviting others to join them in their error.

While I have written a reply to this fallacious argument before, hearing someone making the argument using goat marriage and corpse marriage got me thinking about the matter once again.

Using goat marriage as an example, the idea is that if same-sex marriage is allowed, then there is no way to stop the slide into people marrying goats. Presumably people marrying goats would be bad, so this should be avoided. In the case of corpse marriage, the gist is that if same-sex marriage is allowed, then there would be no way to stop the slide into people marry corpses. This would presumably be bad and hence must be avoided.

The slide down the slippery slope, it must be assumed, would occur because a principled distinction cannot be drawn between humans and goats. Nor can a principled distinction be drawn between living humans and corpses. After all, if such principled distinctions could be drawn, then the slide from same-sex marriage to goat marriage and corpse marriage could be stopped in a principled way, thus allowing same-sex marriage without the alleged dire consequences.

For the slippery slope arguments to work, there must not be a way to stop the slide. That is, there is a smooth and well-lubricated transition between humans and goats and between living humans and corpses. Since this is a conceptual matter rather than a matter of actual slopes, the slide would go both ways. That is, if we do not have an adequate wall between goats and humans, then the wall can be jumped from either direction. Likewise for corpses.

So, for the sake of argument, let it be supposed that there are not such adequate walls—that once we start moving, we are over the walls or down the slopes. This would, apparently, show that same-sex marriage would lead to goat marriage and corpse marriage. Of course, it would also show that different sex-marriage would lead to a slide into goat marriage and corpse marriage (I argued this point in my book, For Better or Worse Reasoning, so I will not repeat the argument here).

Somewhat more interestingly, the supposition of a low wall (or slippery slope) between humans and animals would also lead to some interesting results. For example, if we allow animals to be hunted and there is no solid wall between humans and animals in terms of laws and practices, then that would put us on the slippery slope to the hunting of humans. So, by the logic of the slippery slope, we should not allow humans to hunt animals. Ditto for eating animals—after all, if same-sex marriage leads to goat marriage, then eating beef must surely lead to cannibalism.

In the case of the low wall (or slippery slope) between corpses and humans, then there would also be some odd results. For example, if we allow corpses to be buried or cremated and there is no solid wall between the living and the dead, then this would put us on the slippery slope to burying or cremating the living. So, by the logic of the slippery slope, we should not allow corpses to be buried or cremated. Ditto for denying the dead the right to vote. After all, if allowing same-sex marriage would warrant necrophilia, then denying corpses the vote would warrant denying the living the right to vote.

Obviously, people will want to say that we can clearly distinguish between animals and humans as well as between the living and corpses. However, if we can do this, then the slippery slope argument against same-sex marriage would lose its slip.

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Splitting Marriage: Love Union

Author: Bagande

(Photo credit: Wikipedia)

In previous essays I argued in favor of splitting marriage by proposing theological unions (for the religious folks) and civil unions (to cover the legal contract aspect of marriage). However, there does seem to be one aspect of marriage left out, namely the matter of love.

On the one hand, it is sensible to not include the notion of love in marriage. After all, a couple that is getting married does not have to prove that they are in love. People who do not love each other can get married and people who do love each other (in the romantic sense) need not get married.

On the other hand, the notion of marriage for love does have a certain romantic appeal—fueled by literature and movies (if not reality). As such, it seems worthwhile to include a third type of marriage, namely the love union. While the romantic image is appealing, there is also a more substantive basis for the love union.

As noted in another essay, the theological union was proposed to allow people to exercise both freedom of religion and freedom from religion. As was noted in the essay after that, the civil union was proposed to handle the legal aspects of marriage. In the case of the love union, the purpose is to allow couples to create their own relationship bond (and rules) apart from that of religion and the state. That is, this is a relationship defined entirely by the couple. While the couple might involve others and have a ceremony, a love union would not be a theological union and would have no legal status.  That is, the rules are only enforced (or not) by the couple. Naturally, a love union can be combined with the other types. A couple could, for example, get a theological union at their mosque, get a civil union from the state, and then have an event with friends to announce their love union.

Given that the love union has no theological status or legal status, it might be wondered what it would actually do. The answer is, of course, that this would vary from union to union. However, the general idea is that the couple would define the aspects of their relationship that are not covered by theology (which might be all of it) and do not fall under the dominion of the state. This sort of definition might be something as simple as a declaration of eternal love to a fairly complex discussion of the nature of the relationship in terms of rights, expectations and responsibilities. While not every couple will want to establish a love union, this does seem like a good idea.

Love is, apparently, the least important aspect of marriage when it comes to the political debates over the matter. This might be a reflection of the reality of marriage (that it is about religion and legal rights) or a sign of misplaced values. Because of this, I thought I would at least give love a chance.

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Splitting Marriage: Civil Unions

English: A woman makes her support of her marr...

(Photo credit: Wikipedia)

In an earlier essay I argued in favor of splitting marriage and focused on the creation of theological unions. Each religious institution could define its own theological union in accord with its doctrines, thus allowing people to exercise their religious freedom. However, the theological union would have no legal status—thus allowing people to exercise their right to freedom from other peoples’ religions. Marriage as currently practiced does have numerous legal aspects that range from tax status to hospital visitation rights. On the assumption that these legal aspects are worth preserving, I propose a second type of marriage. At the risk of some confusion, it could be called a “civil union”—but I am not wed to this name. I am also open to the idea that some or even all of the legal aspects of marriage are not worth preserving and would certainly consider arguments to that effect.

A civil union of the sort I am proposing would actually cover a variety of legal relationships and would allow people various options. I base this on the idea that people should, in general, have the freedom to define their legal relationships in this context.

Those who prefer a more traditional approach could select the full traditional marriage civil union with all the legal obligations and rights that compose current marriage. In terms of who should be allowed to engage in such unions, the answer would seem to be that it is open to all adults who are legally capable of giving consent. Thus, this would exclude civil unions with turtles, corpses or goats.  The basis for this is the right of legally competent adults to enter into legal contracts. As I see it, the legal aspects of marriage (such as joint property, insurance coverage, and so on) are merely legal agreements that hold between adults and the sex of the individuals seems to be irrelevant. As such, same-sex civil unions would be just as legitimate as different-sex civil unions. People engage in business contracts with people who are of their same sex all the time and the legal aspects of marriage are rather similar to a business contract—most especially in matters of divorce.

In addition to the “standard package” based on traditional marriage, people could also create more personalized contracts of union. This would involve specifying the legal obligations and rights that define the union. In terms of why this should be allowed, it is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that people can create contracts of union that would allow couples to specify the legal aspects of their civil union. While many of these would be drawn from the “standard package”, these could also include tailored specifications. For example, a contract of union might specify the division of property that will occur in the case of divorce. In fact, given the high divorce rate, such contracts would be rather sensible and would save considerable problems later on.

Given that the legal aspect of marriage are based on a contract, it seems reasonable that many of the rights and privileges should be open to people who are not in a union. For example, people should be able to designate the people who get to visit them in the hospital.

It might be contended that this approach to marriage fails to consider the role of religion in marriage. My obvious reply is that this is exactly right. The religious aspects of marriage should be made distinct from the legal aspects, which is why I proposed the religious union as well.

It might be objected that this contract view of marriage would sully the sacredness of marriage. This proposal would seem to reduce marriage to a legal contract and, of course, people might enter into such unions for impure reasons such as financial gain or to get a green card.

The easy and obvious reply to the sully objection is that marriage has already been well and thoroughly sullied. Hence, replacing traditional marriage with a civil union would hardly sully it. To use an analogy, adding a bit more dirt to a mud puddle is not going to sully its purity, for it has none.

In regards to the impure reasons, it is obviously the case that people engage in traditional marriage for such impure reasons. Thus, this would make civil unions no worse than traditional marriage.

As a final point, it can be argued that marriage is defined by the state to encourage a certain type of marriage and in accord with traditional rights. The easy reply to this is that the state can still encourage marriage types by specifying the contracts and that an appeal to tradition is a mere fallacy.

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Splitting Marriage: Theological Union

U.S Postage Stamp, 1957

(Photo credit: Wikipedia)

In my short book on same-sex marriage I make the suggestion that marriage be split up into different types. I thought it would be  worthwhile to write a bit more on this subject. While this suggestion might be regarded as satire (a rather inferior modest proposal) and I do tend to be a bit sarcastic, this is actually a serious proposal that I believe would solve some of the problems associated with the marriage issues.

While the acceptance of same-sex marriage has become mainstream in some Western countries, there are still those who strongly oppose it. While it is tempting to simply dismiss such people as mere bigots, it does seem worth considering that their values should be tolerated. Of course, even if a set of values should be tolerated on the grounds of the freedom of thought and belief it does not follow that those who have such values have the right to impose these values on others. In the case of those who oppose same-sex marriage, the fact that they consider it against their values does not entail that they have the right to make their values the law of the land.

Since nearly all (or all) of the resistance to same-sex marriage is based on religious beliefs, it is also worth considering the importance of the freedom of religion. While this is a sub-freedom of the more general freedom of thought and belief, it does seem worth considering religious freedom separately,  if only for historic reasons. Interestingly, some who oppose same-sex marriage contend that making same-sex marriage legal imposes on their religious freedoms. However, this is obviously not the case. Making same-sex marriage legal does not, by itself,  infringe on a person’s religious freedom. After all, the legality of same sex-marriage does not require that people get gay-married against their will (which would be a violation of  freedom).

It could be contended that the legality of same-sex marriage could violate a person’s religious freedom in that a person opposed to same-sex marriage who had some sort of official capacity involving marriage in some way might thus be required to recognize the legality of same-sex marriage. For example, a justice of the peace in a state where same-sex marriage is legal would be required to recognize the legality of same-sex marriage. As another example, the clerk who handles marriage licenses in a state where same sex-marriage is legal would also be required to recognize its legality. This is, of course, not unique to same-sex marriage. In the United States, officials refused (and sometimes still refuse) to accept marriage between people of different ethnic groups (typically a black person marrying a white person).

On the one hand, cases such as these can be seen as violation of a person’s religious freedom. Using the justice of the peace example, if Sally’s religious belief is that same-sex marriage is an abomination in the eyes of God, then compelling her to marry Jane and Denise would thus seem to violate her religious freedom. After all, she would be compelled to act contrary to her religious beliefs.

On the other hand, these cases can be seen as not violating a person’s religious freedom. After all, having religious freedom is rather distinct from having the right to impose one’s religious beliefs on other people. In the example, Sally would be imposing her religious view on Jane and Denise rather than exercising her freedom of religion. By not marrying another woman and by regarding such marriages as abominations, Sally would be exercising her freedom of religion.

This can be countered by insisting that Sally’s religious freedom is being violated. After all, as a justice of the peace she is required to act contrary to her faith and she should have the freedom to refuse to do so.

The obvious reply is that she does have the freedom to do so. She can quit her job as justice of the peace on the grounds of her faith. To use an analogy, suppose that Velma believes that eating pork is a abomination on religious grounds. If Velma works at Betty’s BBQ Pit, it is not a violation of her religious freedom for Betty to expect her to serve barbecued pork to the customers. Betty can exercise her freedom by quitting her job and getting one at Paul’s Porkless BBQ Pit.

A counter to this could be based on the argument that a person who regards something a seriously violating their religious views would be wrong to simply walk away. Rather, they should refuse to allow it to occur. Going back to the analogy, suppose that a law was passed allowing human slavery again. If Velma was working at Betty’s Slave Auction and she opposes slavery on religious grounds, it would seem rather problematic to claim that Velma should simply quit. Rather, she should surely try to get the law changed. To avoid any confusion, my point here is not to draw a moral comparison between same-sex marriage and slavery. Rather, the point of using slavery is to use something that should be seen as obviously wrong and that should not be tolerated. To those who oppose same-sex marriage, same-sex marriage is regarded as being something that is obviously wrong and that should not be tolerated.

The sensible reply here is to contend that same-sex marriage is not wrong. That is, that the religious people who oppose it on religious grounds are in error. Interestingly, the same reply has been given by the defenders of slavery, namely that it is not wrong.  Thus, a key part of the matter would involve sorting out the morality of same-sex marriage.

The easy and obvious way out is to note that legalizing same-sex marriage does not inflict any meaningful involuntary harm. In contrast, something like slavery obviously does inflict harm on people. As such, while a person would be right to prevent others from engaging in the practice of something like slavery, the same does not hold in the case of same-sex marriage. Even if same-sex marriage were wrong, the fact that it generates no harm to others would seem to entail that those who oppose same-sex marriage have no grounds on which to claim an obligation to prevent others from engaging in the activity. While saying “I have a moral right to stop you from practicing slavery because you are harming others” seems right, saying “I have a right to stop you from  marrying someone of the same-sex because it is against my religion” seems mistaken.

Thus, those who oppose same-sex marriage on religious grounds do not seem to have adequate justification to deny others legal marriage (that is, the legal relationship recognized by the state). However, the appeal to religious freedom might still be able to provide legitimate grounds for religious groups denying others a certain type of marriage. The key concerns are, of course, what sort of marriage this might be and what might warrant religious discrimination.

Obviously enough, a religious group does not have a legitimate right to deny other people the legal right to marry because the marriage is against their religion. However, voluntary religious groups (like other voluntary associations) do have the right to set certain rules for their members. For example, a tabletop gaming group can set rules about what expansion books are allowed in the game. As another example, a track club might define the rules for their grand prix. As a fourth example, a couple that is “going steady” might set rules about their relationship, such as it being monogamous. These rules are based on the beliefs of the members and typically have no legal status. For example, if Sam is “going steady” with Ted, Sam cannot have Ted arrested simply because he went on a date with Sally. Such rules are often used to help define the identity of the group and set what is regarded as acceptable and unacceptable behavior (such as playing a dragon as a character). Provided that such rules are voluntarily accepted and not harmful, there is certainly nothing wrong with groups having such rules.

Turning back to the main issue of marriage, it seems reasonable to allow voluntary religious associations to have their own rules for marriage, just as it is reasonable to allow gaming groups to determine whether they require their members to dress in character (as an elf wizard, for example). However, just as gaming groups do not have a right to impose their views on others (making everyone dress up as fantasy characters, for example) neither do religious groups. As such, the marriage rules of a religious group cannot have legal status. However, they can be voluntarily accepted by the members of the group.

This, as I have said before, could be called a “theological union.” It would be a religious marriage as defined by the religious group in question and could have all the rules and requirements that the group wishes to accept (subject to the law, of course). However, the marriage would have no legal status at all-that is, it would grant no legal rights nor impose any legal obligations.  So, for example, one church could forbid same sex theological unions while another could embrace them. People who do not agree with the theological unions of a group would be free to leave the group to join or create another that suits their values. Just as people can do so in other theological matters, such as whether or not women can be priests. Naturally, a couple that gets a theological union can also get a legal marriage (a civil union) that would give them all the legal rights and obligations as defined by the law.

Since these unions would have no legal status, there would be no discrimination in the legal sense and thus the specific rules of a religious group would not generally be a matter of concern for the state. This would respect religious freedom by allowing people to define their theological union rules as they see fit, without interference from the state. It would also respect the freedom from religion-that is, the right not to have other folks’ religion imposed on you. So, religious people who oppose same-sex marriage can say “if you are part of our religion that rejects same-sex unions, you cannot get same-sex theological unioned” but they cannot justly say “same-sex marriage is against my religion, so you can’t get a civil union that provides legally defined obligations and rights.”

This approach seems quite sensible, since it respects religious freedom while also protecting people from religious based impositions on freedom.

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The Incest Argument & Same-Sex Marriage

Marriage March 2013

(Photo credit: American Life League)

One of the stock fallacious arguments against same sex-marriage is the slippery slope argument in which it is contended that allowing same sex-marriage will lead to allowing incestuous marriage. The mistake being made is, of course, that the link between the two is not actually made. Since the slippery slope fallacy is a fallacy, this is obviously a bad argument.

A non-fallacious argument that is also presented against same sex-marriage involves the contention that allowing same-sex marriage on the basis of a certain principle would require that, on the pain of inconsistency, we also accept incestuous marriage. This principle is typically some variant of the principle that a person should be able to marry any other person. Given that incestuous marriage is bad, this would seem to entail that we should not allow same-sex marriage.

My first standard reply to this argument is that if different-sex marriage does not require us to accept incestuous marriage, then neither does accepting same-sex marriage. But, if accepting same-sex marriage entails that we have to accept incestuous marriage, the same would also apply to different-sex marriage. That this is so is shown by the following argument. If same-sex marriage is based on the principle that a person should be allowed to marry the person they wish to marry, then it would seem that different-sex marriage is based on the principle that a person should be allowed to marry the person of the opposite sex they wish to marry. By analogy, if allowing a person to marry any person they want to marry allows incestuous marriage, then allowing a person to marry a member of the opposite sex would also allow incestuous marriage-albeit only to a member of the opposite sex. But, if the slide to incest can be stopped in the case of different-sex marriage, then the same stopping mechanism can be used in the case of same-sex marriage.

In the case of different-sex marriage, there is generally an injunction against people marrying close relatives. This same injunction would certainly seem to be applicable in the case of same-sex marriage. After all, there is nothing about accepting same-sex marriage that inherently requires accepting incestuous marriage.

One possible objection to my reply is that incestuous different-sex marriage is forbidden on the grounds that such relationships could produce children. More specifically, incestuous reproduction tends to be more likely to produce genetic defects which would provide a basis for a utilitarian moral argument against allowing incestuous marriage.  Obviously, same-sex marriages have no possibility of producing children naturally. This would be a relevant difference between same-sex marriage and different-sex marriage. Thus, it could be claimed that while different-sex marriage can be defended from incestuous marriage on these grounds, the same can not be said for same-sex marriage. Once it is allowed, then it would be unprincipled to deny same-sex-incestuous marriage.

There are four obvious replies here.

First, if the only moral problem with incestuous marriage is the higher  possibility of producing children with genetic defects, then incestuous same-sex marriage would not be morally problematic. Ironically, the relevant difference between the two that prevents denying same-sex-incestuous marriage would also make it morally acceptable.

Second, if a different-sex incestuous couple could not reproduce (due to natural or artificial sterility), then this principle would allow them to get married. After all, they are no more capable of producing children than a same-sex couple.

Third, if it could be shown that a different-sex incestuous couple would have the same chance of having healthy children as a non-incestuous couple, then this would allow them to get married. After all, they are no more likely to produce children with genetic defects than a non-incestuous couple.

Fourth, given that the principle is based on genetic defects being more likely than normal, it would follow that unrelated couples who are lkely to produce offspring with genetic defects should not be allowed to be married. After all, the principle is that couples who are likely to produce genetically defective offspring cannot be married. Thanks to advances in genetics, it is (or soon will be) possible (and affordable) to check the “genetic odds” for couples. As such, if incestuous marriage is wrong because of the higher possibility (whatever the level of unnacceptle risk might be) of genetic defects, then the union of unrelated people who have a higher possibiity of genetically defective children would also be wrong. This would seem to entail that if incestuous marriage should be illegal on these grounds, then so too should the union of unrelated people who have a similar chance of producing defective children.

In light of the above, the incest gambit against same-sex marriage would seem to fail. However, it also seems to follow that incestuous marriage would be acceptable in some cases.

Obviously enough, I have an emotional opposition to incest and believe that it should not be allowed. Of course, how I feel about it is no indication of its correctness or incorrectness. I do, of course, have argments against incest.

Many cases of incest involve a lack of consent, coercion or actual rape. Such cases often involve an older relative having sexual relations with a child. This sort of incest is clearly wrong and arguments for this are easy enough to provide-after all, one can make use of the usual arguments against coercion, child molestation and rape.

Where matters get rather more difficult is incest involving two consenting adults-be they of the same or different sexes. After all, the moral arguments that are based on a lack of consent no longer apply. Appealing to tradition will not work here-after all, that is a fallacy. The claim that it makes me uncomfortable or even sick would also not have any logical weight. As J.S. Mill argued, I have no right to prevent people from engaging in consenual activity just because I think it is offensive. What would be needed would be evidence of harm being done to others without their consent.

I have considered the idea that allowing incestuous marriage would be damaging to family relations. That is, the proper moral relations between relatives is such that incest would be harmful to the family as a whole. This is, obviously enough, analogous to the arguments made by those who oppose same-sex marriage. They argue that allowing same-sex marriage would be damaging to family relations because the proper moral relation between a married couple is such that same-sex marriage would damage to the family as a whole. As it stands, the evidence is that same-sex couples do not create such harm. Naturally, there is not much evidence involving incestuous marriages or relationships. However, if it could be shown that incestuous relationships between consenting adults were harmful, then they could thus be justly forbidden on utilitarian grounds. Naturally, the same would hold true of same-sex relationships.

Reflecting on incestuous marriage has, interestingly enough, given me some sympathy for people who have reflected on same-sex marriage and believe that there is something wrong about it. After all, I am against incestuous marriage and thinking of it makes me feel ill. However, I am at a loss for a truly compelling moral argument against it that would not also apply to non-related couples. My best argument, as I see it, is the harm argument. This is, as noted above, analogous to the harm argument used by opponents of same-sex marriage. The main difference is, of course, that the harm arguments presented by opponents of same sex-marriage have been shown to have premises that are not true. For example, claims about the alleged harms to children from having same-sex parents have been shown to be untrue. As such, I am not against same-sex marriage, but I am opposed to incestuous marriage-be it same or different sexes.

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Will Same-Sex Marriage Lead to Bestiality?

The Lone Ranger Rides Again

The Lone Ranger Rides Again (Photo credit: Wikipedia)

One stock “argument” against same-sex marriage is that legalizing it will put us on the slippery slope to bestiality. That is, if the Lone Ranger can marry Tonto, then he can marry Silver. This line of “reasoning” is easy enough to defeat.

First, this is an example of the classic slippery slope fallacy. Second, there is fact that if allowing different-sex marriage between humans does not lead to or warrant bestiality, then it would follow by analogy that allowing same-sex marriage between humans would not lead to or warrant bestiality. After all, if Adam marrying Eve does not warrant Adam marring a snake, then Adam marry Steve would not do so either.

While the bestiality argument is typically presented as a fallacious slippery slope, it is worth considering whether or not a proper argument can be presented that would show that allowing same-sex marriage entails that bestiality must also be accepted. Obviously, merely claiming that allowing same-sex marriage will lead to human-goat marriage is not enough. What would be needed would be logical reasons that we cannot accept same-sex marriage without being force by consistency to allow human-animal marriage.

Perhaps the most plausible way to argue for this is to begin by contending that same-sex marriage is justified by the principle that a person can marry anyone he wants to marry. This would, of course, justify same sex marriage: if a person can marry anyone he wants to marry, then he can marry another man. And a woman can marry another woman. It would also seem to justify human-animal marriage: if a person can marry anyone he wants, then he can marry a goat. As such, if we justify same-sex marriage on this principle, then it would also justify human-animal marriages. It would also justify human-rock marriages, human-iPad marriages and so on. A person could, on this principle, marry anything.

Now, if it is assumed that a person can marry anyone he wants, then this would also include marrying people who do not want to get married, people who are already married, and even Catholic nuns and priests.

Obviously enough, this principle leads to absurd results. As such, if this were the justifying principle for same-sex marriage, then there would be an excellent reason to reject same-sex marriage. However, if there is another principle (or principles) that would justify same-sex marriage while avoiding absurdity, then this principle could be sensibly used.

One obvious avenue of inquiry is to consider the principle that justifies different-sex marriage. While some might assume that different-sex marriage needs no justification, that would seem to beg the question. Naturally, if what justifies different-sex marriage would also apply to same-sex marriage, then there would not be a principled way to forbid one while accepting the other. However, if the justifying principle for different-sex marriage did not apply to same-sex marriage, then one could be allowed while the other is consistently forbidden.

One approach that people have taken is to argue that different-sex marriage is justified by a principle involving natural procreation. This principle would, obviously enough, not apply to same-sex marriage. However, this principle would lead to its own absurd results, namely that different-sex couples who could not have children or choose not to have children would not be permitted to marry. As such, unless we are willing to forbid such people from being married, then the procreation justification must be abandoned.

Once the procreation principle is out, there seem to be no non-ad hoc or non-question begging principles left that would allow different-sex marriage while forbidding same-sex marriage. For example, if a principle involving love is used, that could apply to different-sex and same-sex marriage (and, of course, we obviously do not take love to be a necessary condition for legal marriage). As another example, if someone claims that the principle is that men can only marry women, this would beg the question. It would be on par with arguing that mixed-race marriage is forbidden because the principle is that a person can only marry a person of the same ethnicity.

One worry at this point is that if any principle that warrants different-sex marriage would also warrant same-sex marriage, then it would seem that we would slide into human-animal marriage. Fortunately, this can be avoided in a principled manner.

Intuitively, marriage is a legal and moral agreement that requires the consent of both parties. Animals cannot, obviously enough, even understand marriage let alone provide consent. As such, a human cannot marry an animal. An animal can no more marry than it can make a promise or tell a lie. As such, same-sex marriage can be allowed without accepting a slide to human-animal marriage.

It might be countered that by taking marriage to require consent I am engaged in an ad hoc or question begging defense. After all, one might say, if marriage can include a man marrying a man, why can it not include a lack of consent and comprehension on the part of one partner, such as a goat? After all, if marriage is being redefined, why not redefine it completely?

The obvious reply is to note that if marriage can include a man marrying a woman, why can it not include a lack of consent and comprehension on the part of one partner, such as a goat? That is, if marriage is allowed, why not allow it for everyone and everything? However, if marriage (like debating or lying) requires certain capabilities (such as the ability to understand the relationship and consent to it), then humans can marry humans but not animals.


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Will Same-Sex Marriage Lead to Fathers Marrying Their Sons?

Jeremy Irons

Cover of Jeremy Irons

Actor Jeremy Irons was recently asked about the legalization of same-sex marriage. In response, he raised the question of whether or not a father could marry a son.

When I first heard that Irons spoke about a father marrying a son, I had inferred that he was just presenting the tired stock anti-same sex slippery slope fallacy in which it is claimed that if we allow same-sex marriage, then this will inevitably lead to allowing incest (and bestiality). The stock replies to this line of “reasoning” are to 1) point out that it is the slippery slope fallacy and 2) explain that allowing same-sex marriage no more allows incest (or bestiality) than does allowing different-sex marriage. After all, if different-sex couples can marry without a slide into different-sex incest and bestiality, then it would certainly seem to be the case that same-sex couples could marry without a slide into incest and bestiality.

However, Irons raised a more interesting point: if we allow same-sex marriage and this leads to allowing a father to marry his son, this could be used to work around the inheritance laws. After all, while a son would have to pay the inheritance tax on property he inherited from his father, he would not have to do so on property inherited from a deceased spouse. So, a father and son could get married not for the purpose of incest but for avoiding the inheritance tax. This idea might cause some confusion for certain Republicans—after all, this provides a way to avoid taxes but at the cost of allowing same-sex incestuous marriage.

While Irons did not explore all the ramifications, if anyone could marry anyone, then people could marry each other to get various spousal benefits (such as insurance coverage or green cards). While Irons’ point is interesting, it is easy enough to address these worries.

First, the claim that allowing same-sex marriage automatically entails that incestuous marriage be allowed is still the slippery slope fallacy. If accepting different-sex marriage does not warrant different sex-incest, then neither does same-sex marriage. And, of course, neither would warrant accepting bestiality. As such, there seems to be no reason to worry that legalizing same-sex marriage would lead to fathers marrying their sons to avoid taxes.

Second, while the idea of a father marrying a son to avoid taxes seems shocking, the general problem would be the exploitation of marriage. This is not a problem unique to same-sex marriage. After all, people already exploit different-sex marriage. As a specific example, a man could marry a woman (who is not too closely related) so she can avoid paying the inheritance task.  Nothing about the current marriage laws forbids this.  To make the more general point, any advantageous exploitation of marriage that would become available to a same-sex couple with the legalization of same-sex marriage is already available to different-sex couples.

If such advantageous exploitations are the problem, then the solution would be fixing these problems rather than focusing unfairly on the idea that same-sex couples would avail themselves of existing marital exploits. For example, if there is a terrible worry that people would engage in same-sex marriage to avoid the inheritance tax, then the solution would be to require spouses to pay this tax (or eliminate it altogether). As another example, if there is grave concern that two guys will get married just so one guy can get health insurance, then the solution is to change the insurance laws. After all, if the concern is that marriage will be exploited, then the clear solution is to take away the exploitable advantages—that way we can be sure people are not marrying just to avoid a tax, get insurance or for some other similar reason.

Some people do imply that same-sex couples would be more likely to engage in such advantageous exploits than different-sex couples or even that people would pretend to be gay to gain such advantages.

One obvious response is that there seems to be no reason to think that same-sex couples would be any more (or less) likely to marry for advantages. As far as people pretending to be gay, that seems to be rather odd—after all, a person who is not gay and wants to marry for an advantageous exploit could simply find a person of the opposite sex. The idea of pretending to be gay might make for a plot device for a comedy, but is hardly something that would be commonly (or even uncommonly) done.

If the problem is that same-sex couples would have the same advantages as different-sex couples, then this would seem to be a mere expression of prejudice.

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