[Vision2020] Another View Point.......

[Wayne Price]

The Same-Sex Marriage Debate: A Third Option?
Same-sex marriage has been a big topic of discussion for about fifteen  
years. Same-sex marriage has been nearly the only topic of debate for  
the last fifteen days. And frankly, I hate the debate, because, well,  
most everybody sucks at it. You've got (at least) two sides talking  
right past each other. I get frustrated when the pro-gay-marriage  
people presume that their opposition only acts out of bigotry, and I  
get livid when the one man-one woman people think that it makes sense  
to make arguments from Christian revelation when debating civil rights  
in a pluralistic secular democratic republic.


I would prefer to not write a blog post to just "address a current  
topic", especially without greater opportunity to build a common  
vocabulary and see if there may be some principles that people can  
agree on. And I'd always prefer a one-on-one conversation in something  
as heated as this. But I've had about ten people this week ask my  
opinion on this, or ask how they can address this question without  
seeming hateful. So, I feel compelled to say my thoughts. And I think  
I'll be upsetting staunch activists on both sides pretty severely....  
so, keep your blood pressure pills handy.


I'm first going to lay out a traditional Natural Law argument for  
keeping the civil institution of marriage available only to a man- 
woman pair who intend to remain faithfully married to each other  
alone. It's the position I held all my adult life until the last year  
or two. This argument is remarkably solid....and it's almost utterly  
unhelpful in the current scenario. After that, I want to look at  
another solution that holds the same root Natural Law points, but  
actually could fit 2012 America.


Let's understand first why I am taking the Natural Law angle(s).  
America might have been founded but a group of Christians and Deists,  
but it's not a "Christian country". It may have a general history of  
Judeo-Christian moral fiber, but the precepts of monotheistic  
revelation are not a legitimate final authority in a pluralistic  
secular society. Atheists are right when they say the First  
Amendment's (Non-) Establishment Clause keeps Christian revelation  
from becoming the standard of the law. Using religious arguments in a  
secular state's debate over the civil institution of marriage is like  
bringing a badminton racket to your Jeopardy appearance: you can use  
it, but it won't score any more points. This is an error of many  
Christian conservatives.


But before the pro-family people declare me anathema, let's clear up a  
far more widely held error of social progressives: the claim that "you  
can't legislate morality." Of course you can—and we do, all the time.  
Making murder, rape, theft, molestation, and plagiarism illegal is  
definitely "legislating morals". The Affordable Care Act makes the  
positive declaration that a citizen not having real access to health  
insurance is moral unacceptable, and therefore is now legally  
disallowed.


So, the real question is: "Which morality should a state be proposing/ 
protecting if it shouldn't be some religion's revealed morals, and not  
just whatever the majority capriciously wants to declare?" Natural Law  
is really the only moral philosophy that one can hold to in order to  
be able to explain why "X is more just than Y" or why "A is a fitting  
solution for Problem B". Whether one thinks that his thoughts fit into  
the more traditional systems of Natural Law, this thinking is  
certainly what people instinctively do. All but the most self-willed  
people understand on some level that the nature of the thing tells us  
about what's good for it. Natural Law's process is threefold: 1) look  
at the nature of the thing, 2) see what's good for it, 3) know how to  
treat it. A "good pair of scissors" is one that cuts things easily;  
scissors cut well by remaining sharp and aligned; cutting copper wire  
with scissors dulls the blades, so we can reasonably declare that  
"cutting wire is bad for the scissors". Most people agree we can cut  
down trees and kill cows to get natural resources, but also we  
recognize that while cutting limbs off a tree and letting it live is  
okay, hacking steaks out of a living steer and leaving it alive isn't.  
Why? Because while the natures of both of these have life and bodily  
integrity, the steer also has pain and motion that would be suffering  
violence which the tree doesn't suffer when cut.


Therefore people ought to, and have, attempted to base laws not on  
mere desires, opinions, or prejudices, but on human reason's ability  
to discern justice for things based on their natures. Even the same- 
sex marriage camp's main argument has been essentially one of Natural  
Law: "Humans possess personal love and freedom of will; if Bob and Sue  
can choose to enter a permanent bond of love, so should Bob and Bill."  
Natural Law (however one calculates its conclusions) should not be  
seen as the weapon of one side (usually considered the province of the  
one man-one woman crowd), but rather as the only tool with which one  
can hold a debate in a pluralistic country. If you think there are  
real reasons—not just religious dictums or personal opinions—for why  
your side is right, then you believe in a reasoned Natural Law.  
Ultimately, I'm saying: "If you want to have a worthwhile logical  
debate on this, then using reason alone is your only route. Put away  
your Bibles and put away the word 'bigot'."


One last thing before my arguments: Let's make sure we keep distinct  
the questions of
1) same-sex attraction/orientation,
2) same-sex activity, and
3) same-sex civil marriage.
The TV and the Internet are currently swarming with people on both  
sides not keeping these distinct. Someone who opposes #3 does not  
necessarily hate people in #1, or even necessarily object to #2 done  
in the privacy of a bedroom. Likewise, a given religion's rejection of  
#2 does not mean that they think #1 is morally wrong, and that  
particular religion may have nothing to say about #3 whatsoever, since  
the debate is over civil marriage licensing. I happen to agree with  
Clint Eastwood that speaking of the "sanctity of marriage" is  
fallacious. Some Christian groups believe in a sacrament of matrimony  
(which is much more narrowly defined), and they can speak of  
"sanctity" there, but that doesn't speak to the sanctity of civil  
marriage. And just because civil marriage is an extremely ancient  
human institution, doesn't make it sacred. Since 2003, any laws  
limiting #2 have been abolished, and they hadn't been enforced or  
retained for decades before anyway, so the subject currently for  
debate is strictly #3.


I'll now present a Natural Law argument against same-sex civil  
marriage. No, it has nothing to do with whether the bodies of two same- 
gendered humans "go together right". The question we should ask isn't  
"Why not gay marriage?", but rather "Why civil marriage at all?" We  
can, perhaps, see why religions, which often solemnize births and  
deaths, would want to mark marriage, but why should the state? Why  
would they care? States don't bother to regulate, legislate, or  
validate your friendships. You don't mention your siblings, boyfriend,  
or BFF on your 1040 form. But the state does track marriages and it  
does ask for your spouse on your tax form. Why? Because states want to  
protect, encourage, and reward entities that are good for the  
commonwealth. We give tax breaks to clean energy initiatives because  
we want more of that. We break up monopolies because business  
competition is good. We regulate and underwrite public schools to  
ensure an educated citizenry.


Ancient humans learned that a child was brought up best when her  
parents stayed together (humans are notoriously slow-developing and  
need years of cooperative rearing) and if her siblings had the same  
parents too (a family being a better bonder than a boarding house). So  
they developed some rules to encourage and benefit these pairings,  
like recognizing the transfer of property and influence, and they made  
other rules to protect the nascent institution, like forbidding  
adultery and rape and allowing retribution for injuries to one's  
family members. Successive generations added greater formality, but  
all to the same end. States granted privileges to this institution  
which they didn't grant to other relationships because it benefited  
the states in a unique way as the institution reared their children  
and provided great stability in this basic building block of society.


Now, many have pointed out that perhaps marriage in the modern context  
has been over-privileged, to the detriment even of other  
relationships. That may be true. Marriage lets one spouse inherit all  
the other's property without a tax, she can collect his social  
security, he gets to be on her insurance for free, she gets privileged  
access to his medical data and life-and-death decision making, etc.  
People who are single, or living with someone, or in a same-sex union  
are, by comparison, seemingly disenfranchised. Gay partners were  
denied access to hospital visits that wives' husbands got without  
question. For at least a decade I've heard a solid rejoinder to this  
in the form of, "This perhaps is unfair, but that means we should  
adjust those specific rules, not rewrite the immemorial institution."  
And many places have done that: allowing all employees to share their  
health insurance with one other person regardless of relationship,  
opening up who can have access to medical consultations and  
visitations. People regularly debate whether the estate tax is good  
for anyone. This objection by the same-sex marriage advocates is  
perhaps just, but seems to fight the wrong set of rules.


The other counterpoint to a Natural Law "societal good" argument is  
that a lesbian couple may be just as good of a societal building block  
as a straight couple. The classic refutation would be: "Perhaps so,  
but the lesbian pairing doesn't make and rear children, so there's not  
the reason to privilege it." The immediate response would be that they  
could get inseminated or adopt. The rejoinder to that will be that  
since their union doesn't produce the children, the state still  
doesn't have the same interest. The obvious rebuff to this will be  
that, then, infertile straight couples should not be considered  
married. To which the reply would probably be, "Yes, but to grant a  
privilege to a couple that should likely be fertile (and later on  
could still be) and then take it away from them is quite different  
from granting a privilege to a couple that can never be fertile." This  
is probably enough to convince some on the fence, but not all, nor  
will it likely convince the staunch same-sex advocate.


This is the most common, and, I think, a pretty darn compelling  
argument for states enshrining faithful, permanent, childbearing  
marriage in a protected (and exclusive) status. Religious and non- 
religious alike have argued it for years. [A recent, much-crisper  
version of this argument from an economist's point of view comes from  
Adam Kolasinskiat MIT.] The argument it reasonable, does not rest on  
bigotry, nor on religiously-revealed truths, nor does it address  
anything other civil marriage.


And up until about two years ago, I thought it answered the question,  
and was exactly what the one man-one woman camp needed to use to get  
over the accusation of trying to make this an imposition of religious  
moral views.


But while I still believe the above argument is utterly valid in  
theory, I don't think it remotely works in America in 2012. It may  
have been valid in 1950, but not now. The reason is simple: America is  
not a country dedicated to preserving marriages or forming children  
within those families. Given that abortion and no-fault divorce are  
enshrined rights, and that contraception and sterilization are the  
sine qua non of the "modern family", it's ridiculous to say that civil  
marriage exists for the procreation, formation, and welfare of  
children, or that the U.S. values the family as the firm bedrock on  
which our society rests.


It's common to hear things like: "50% of marriages end in divorce, 15%  
of marriages have physical abuse, Kim Kardashian got divorced after 72  
days, and you think gay marriage will destroy the sanctity of  
marriage?!" And they're right!—civil marriage is a farce. If the state  
protects your right to not have a fertile marriage and to not have to  
stick around to raise your progeny, it seems the centuries-old  
privileges of the civil institution are pointless. I'm amazed at the  
number of Christians so desperate to protect the "institution of  
marriage"—amazed either because that entity is already dead, or  
because they support the things that killed it. Gay-activist (and  
someone who understands the concepts of Natural Law) Andrew Sullivan  
writes: "The heterosexuality of marriage is intrinsic only if it is  
understood to be intrinsically procreative; but that definition has  
long been abandoned in Western society." And he's right—at least from  
the point of civil marriage. There's no small number of Christians who  
reject same-sex marriage, but accept abortion. There's a colossal  
number of Christians who despise gay marriage (and sometimes gays) but  
will defend to the last no-fault divorce and contraception. They must  
be basing this on Leviticus, because they're not basing it in logic.


So what do I suggest? End no-fault divorce and contraception? No, I  
don't think those genies can go back in their bottles. Granted, the  
"3rd Way" solution I support instead is, at first blush, only somewhat  
less radical, but it is still a Natural Law solution, and equivalent  
in its root principles to the first one. I did reject it for the first  
30 seconds after Dr. Jim Madden proposed it as a possibility, but  
since then I see it as the only thing that keeps those principles,  
deals with the situation we have, and fits perfectly within the  
pluralism of the modern secular democracy.


The answer is simple: Get the state out of the marriage business.  
Eliminate, or at least create no more, civil marriages, and then stop  
using it as a civil category. Let's stop giving any legal privilege  
(or even, credence) to Kim Kardashian's marriage, or anyone else's for  
that matter. Allow people to marry privately in whatever form and  
ceremony they want, but simply cease having a civil institution that  
means so little, protects so little, and expects so little.  
Denominations and other "marrying establishments" won't have their  
consciences infringed upon, and they can be as narrow or broad as they  
want in the matrimonial services they offer. So now Bob can go to the  
Missouri Synod Lutheran pastor and he'll marry Bob to Sue, the  
Episcopalian priest will marry Bob to either Sue or Steve, the Mormon  
bishop will marry Bob to Sue, Sally, and Kate together, and Bob's  
buddy Bill who got his officiant's license on-line will marry Bob to  
any of the above, or to a goat. The Elvis wedding chapels would be  
free to be as traditional or progressive as they wish. Of course,  
you'll still have lawyers to sort out any separations, but they'll do  
like they do already for cohabiting boyfriends and girlfriends, joint  
home owners, and businesses. Taxes, finances, and insurance, would be  
simplified. There'd still be marriages and families, but the secular  
and sectarian definitions wouldn't clash any more. Religious groups  
may actually find this freeing.


Europe already kind of does this, not institutionally, but de facto  
because so many don't bother with getting married at all. And if they  
do, the civil and sectarian ceremonies in Europe are separate. Want a  
gay marriage? Just don't go to the local Catholic parish. Want a  
polygamous arrangement? Just don't go to the civil authority about it.  
My plan would go even one step further, and it avoids the  
contradictions that currently exist in Western civil marriage.  
Honestly folks, it's 2012—with so many competing definitions of  
marriage, why is the state even in the marriage business anymore?  
America isn't just pluralist in terms of its religions; it's pluralist  
in its conceptions of marriage.


Frankly, I don't think this would actually change much of life.  
Already a Catholic marriage tribunal doesn't recognize the validity of  
a civil-only marriage for a Catholic, nor acknowledge the existence of  
divorce. Already a civil court cares nothing of whether or not a  
partner is faithful or not. Already anybody can get licensed to be the  
legal officiant at a wedding, without any training in civil law or in  
preparing people for marriage. Already there is nothing more required  
to get married than to be of age, to not be too closely related, and  
to be not currently married. Heck, there's not even a minimum required  
form of the modern wedding ceremony or contract. You can say "I like  
your face and I hope we keep having lots of fun" and that's a legal  
marriage "vow".


Now, I'm sure some same-sex marriage advocates will see this as  
traditional marriage fans simply "taking their ball and going home  
because they can't have it their way". It may look a bit like that,  
but that forgets what has already changed. It's not that it would be  
taking away the possession that homosexuals wanted, it's an  
acknowledging that in a mere fifty years this country has ceased to  
possess that institution that humans for millennia called marriage. If  
the goal of the same-sex marriage initiative is to gain the final mark  
of equality by laying hold of the beautiful, worthy, centuries-old  
bond of unshakably stubborn trust, concern, and fidelity, I regret to  
inform them that the institution they'd gain access to is not that  
ancient treasure of devotion. Frankly, in the future, gays and  
lesbians, in groups and congregations, may be able to develop for  
themselves far more worthy notions of mutual support than what "civil  
marriage" is at the dawn of the 21st century.


In the end, I just don't see what the battle is over. The object both  
sides are fighting over is the burned-out shell of a broken, discarded  
institution. They are violently fighting for—one side to "save", the  
other side to "win"— an entity that no longer exists.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/vision2020/attachments/20120515/764a9e66/attachment-0001.html>