It's been complete bedlam at my house lately. I made one of my periodical forays into cultural Judaism this past weekend by hosting a Passover seder. My parents, my brother and sister-in-law and their two kids (ages eight and ten) and some friends, eleven in all, packed into my small house. It was a lot of fun, but stressful too. The poor cats had a rough weekend, since they're morbidly afraid of anyone who isn't me. This was disappointing to my niece and nephew, who had been told that there would be cats to play with.
But that's all behind me now, so it's time to get back to sneering at the notion of “natural law.” Specifically, I've been considering this article, by John Finnis and Robert George. They are explaining why Catholic sexual ethics, specifically with regard to gay marriage, are entirely reasonable. I began the discussion in this post.
Prior to reading their essay, my impression of natural law theorizing, especially with respect to homosexuality, was this: Some people think homosexuality is icky. But just saying so doesn’t sound very intellectual. It’s far more impressive to invent, from whole cloth, a notion of natural law, and then justify your distaste for homosexuality by reference to it.
That impression was confirmed by reading this article. It is full of assertions regarding the nature of marriage and of human flourishing, but contains almost nothing in the way of argument that those assertions are correct. Thus, they begin by asserting that “marriage is a natural form of human association, with its own basic structure and value,” and then go on to assert that this basic structure and value involves a man and a woman in a loving relationship with an eye towards procreation. They present this as axiomatic. To judge from what they have written, they don’t seem to realize that this premise is precisely what is being challenged by those who defend the legitimacy of gay marriage.
They assert that “only a man and woman together can commit to a loving union of the kind inherently oriented to family life and appropriate to being the mother and father of their children.” But why should anyone agree to this? I see no reason at all why a homosexual union cannot be just as oriented toward family life. Nor do I see why the children a homosexual couple adopts, or produces through in vitro fertilization, should be regarded as any less “their children” than those produced sexually. When Finnis and George italicize “inherently” and “their children,” they are just trying to win the argument by definition. I certainly agree that only a man and a woman together can produce a child through sex. If that’s all they mean then they could have just said that. What needs to be explained, though, is why “has the ability in principle to produce a child through sex” ought to be the defining characteristic of what a marriage is. Finnis and George seem to regard that as obvious, but more sensible people will demur.
Of course, part of the problem is that their writing is frequently opaque. They talk casually, for example about the “intrinsic human value” of marriage, but I have no idea what that means. I can think of several possibilities, but I cannot think of any interpretation under which it is both true and nontrivial that marriage has intrinsic human value. I’m certainly fine with the idea that marriage as Finnis and George conceive it is an especially important human institution, and one which the government has an interest in protecting and even promoting. But how you go from that to the notion that homosexual marriage is valueless, and even detrimental, to society is entirely unclear, to put it kindly.
Finnis and George make an attempt to explain this, but I can’t make heads or tails of their argument. Permit me to quote at length:
But the truly morally significant thing about all non-marital sex acts is that, in diverse forms, they involve disrespect for the basic good of marriage.
There are several ways to see this disrespect. Here, in these next four paragraphs, is one. Adequately respecting any basic good requires, among other things, not setting one’s will directly against any conditions essential and internal to that good. Now if a husband and wife do not reserve sex to their marriage, then even their sex acts with each other can’t really actualize and embody their marital bond: for these acts can’t express a truly exclusive commitment, which marriage inherently is. The husband and wife’s firm will to reserve sex for each other is, then, an essential condition of any sex they have with each other being marital sex. Even just a husband’s conditional willingness to engage in sex with someone else—e.g., “if the circumstances ever ensured that my wife wouldn’t find out…”--disable the marital quality of his sex acts with his wife, whether or not he ever actually cheats; and likewise for a wife.
Let’s pause the tape. Even granting for a moment the dubious premise that sex is morally permissible only in the context of an exclusive relationship between committed partners, why cannot homosexuals engage in such an exclusive relationship? And while I certainly agree that even the desire to commit adultery can be harmful to a marriage, I see no connection at all between that trivial observation and the legitimacy of gay marriage.
Similarly, if people are willing to perform a sex act that fails to embody permanent commitment, or a bond that is procreative in type (whether or not it is, or can in the circumstances by, procreative in effect), they disable themselves from willing in such a way that their sexual congress can actualize and express the good of marriage, which is inherently permanent and procreative in type. Even mere approval of anyone’s non-marital sexual conduct implies a conditional willingness to engage in such acts oneself—namely, if one were in relevantly similar circumstances. That is, such approval implies willingness to choose sex under a description (e.g., “simply pleasing to all three of us,” or “simple expressive of affection,” or “simply conducive to my psycho-somatic health”) other than: marital.
This is just completely demented. It is idiotic on the merits and none of it follows from the dubious premises they laid out earlier in the essay. Please explain to me why an unmarried person who engages in sex somehow disables himself from later engaging in a committed, marital relationship. Not many people are virgins on their wedding day anymore, but even in a time of high divorce rates many successful marriages ensue. Why isn’t that empirical disconfirmation of what Finnis and George are saying? (Of course, as we discussed in the earlier post, Finnis and George seem to think they can hold forth on these things in the abstract, but that is silly.) And how is a married person damaging his marriage by suggesting that if he were a different person in different circumstances he might take a different view of sex?
Even granting everything Finnis and George assume about the nature of marriage, I don’t see where any of this is coming from. I may as well argue that it devalues chess to have other people playing checkers. (Or even being willing to play checkers!)
Finnis and George promised us four paragraphs, so let us look at the next two:
Any such willingness vitiates an essential condition internal to any realization of the good of marriage and damages that aspect of ourselves—our human nature—that makes us, to quote Aristotle, conjugal beings. (Aristotle is famous for teaching that the human being is by nature a political animal; what is less often recalled is his teaching that human beings ore even more fundamentally conjugal than political.) So it involves a failure to respect that basic human good; so t involves immorality, whether or not one is married or plans to be.
And because this particular basic good is so central to the common good, failures to respect it—forms of willing or willingness at odds with it—are also failures of due respect for the good of one’s whole society. This is not a merely abstract or “merely moral” matter: Such contra-marital attitudes easily spread and cause tremendous and quite visible social harm, as the carnage of the Sexual Revolution makes clear—harm measured in broken hearts and homes, fatherless children, and broader related injustices.
With regard to that last paragraph, we should also note this passage, from their conclusion:
But the concordance of this revealed faith with the best philosophy untouched by Hebrew sources, as a higher synthesis of the insights of Plato and Aristotle and many others, is just a sign of its perennial validity. Another equally telling sign is its good fruit—the good fruit of its exclusions and its condemnations of certain kinds of choice.
Anyone who can speak causally about the “carnage” of the Sexual Revolution, or the “good fruit” of Catholic sexual ethics, is not making any attempt to deal seriously with the facts of human relationships. Overly libertine attitudes towards sex, of the sort embodied in certain aspects of the Sexual Revolution, can sometimes lead to bad consequences, as when promiscuous men leave unwanted children in their wake. But it can also lead to very good consequences, as when the ready availability of contraception makes it possible for women to pursue satisfying lives outside the home. Catholic sexual ethics can sometimes lead to good consequences, as when people are taught the importance of committing to their spouse and to the raising of their children. But it frequently leads to very bad consequences as well, exemplified by the many women who describe marriage as a prison, or the many couples who must choose between dissatisfying sex lives or having huge numbers of children, or the rampant overpopulation caused by Catholicism’s ridiculous attitudes towards contraception.
Not to mention the tremendous misery and cruelty inflicted on homosexuals by Catholic attitudes towards sex. To accept what Finnis and George say about sex and marriage is to deny the basic humanity of homosexuals. I’m sure they would deny this accusation, but it is no less true for that.
Finnis and George have not offered any serious argument for rejecting gay marriage. Like all right-wing fanatics, they see themselves as supremely rational and logical, explaining the cold, hard truth to an emotional public too mired in immorality to see the wisdom of what they are saying. They prefer simplistic, all-encompassing bromides to the messiness and nuance of actual human relationships. That most of the thinking world sees in their arguments just a mess of unsupported assertions, incoherent rhetoric, and faulty logic is, to them, just more evidence that they are right. That is why they build into their essay an explanation of why they have been so unsuccessful at winning people to their point of view:
Cathoic sex ethics is “still” as fully reasonable today as it was when St. Paul expounded it—and identified prostitution and same-sex acts ad obviously or visibly far out of line with it—as the sort of thing that people would lose their sound judgment about if and only if they or their society were blind to or careless about the omnipresent, invisible reality of divine causation ex nihilo, divine providence, and the possibility of a divinely willed human destiny beyond death. The natural law understanding of human fulfillment is inherently intelligible without adverting to that “theistic” framework. But when reason closes itself off against the real framework as a true whole—in thought decapitiating it—other distortions of understanding an judgement will ensue, especially in reason’s practical domain, where desire and satisfaction provide every incentive to rationalization of misjudgement.
Charming. Apparently it is only Catholics who can think clearly about these issues. You can take that paragraph as a tacit admission that their arguments are not very good.
Frankly, though, the folks who say, “It’s Adam and Eve, not Adam and Steve,” are making a better argument than Finnis and George.
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That's a reasonable argument for why married individuals shouldn't have extramarital sex (though there may be exceptions). But it offers no cogent reason why unmarried people shouldn't have sex or, as JR notes, why people who are SSMied to each other shouldn't have sex with each other. This is, IMO, just a scholastic version of the "you being allowed to marry harms my marriage" claim. To which the reply is; "what harm? Describe it." AFAIK to date, no one on the con side has given a legally defensible answer to that. They sometimes give religious answers to that, but since the courts cannot assume any specific religious metaphysics is valid, claiming that someone else's gay marriage or some single person's hookup harms the metaphysical platonic form of marriage isn't going to wash.
"Procreative in type." The interesting thing about this quote for me is that these are Catholic theologians. Yet their argument would seem to imply that hetero sex with your impotent spouse is less moral than hetero sex with your spouse using protection, as the latter will generally have a higher chance of being 'procreative in effect.'
Which is an argument for gay marriage. If you want the rate of 'libertine' sex outside of marriage to go down, allow gay people to get married. If you want stronger commitments, allow gay marriage.
Well, they're making a more transparent argument. I don't think its really better because I think F&G's arguments are basically the same as the 'on the street' arguments, just with a scholastic veneer added. It's still just "your marriage to that other guy damages my marriage to my wife" with no real explanation as to how that can be or what specific secular (i.e. non-theological) damages have been inflicted on the hetero marriage.
The "Natural Law" approach to morality is an interesting riposte to those theists who claim that one can only be moral via direct knowledge of a god's will. (Although, given that the folks who demand a divine foundation for morality are often fundamentalist Protestants, I'm not sure that a Papist philosophical tradition would be very convincing.) In any case, there's a sense in which the "Natural Law" approach is very similar to Harris' attempt to naturalize ethics. I don't think his project succeeds, but at least he imports fewer questionable premises than does Catholic "Natural Law".
One would think, however, that if the conclusions reached by Finnis and George are indeed so obviously "natural", more cultures historically would have structured marriage and sexuality in that fashion. Curiously, the Old Testament is rife with plural marriage and concubines...
It seems as if there are just certain kinds of people who will not sully their beautiful world view with inconvenient and complicated empirical facts. The authors of the text you cited need to get out into the fresh air more, metaphorically speaking.
Tulse: In any case, there’s a sense in which the “Natural Law” approach is very similar to Harris’ attempt to naturalize ethics.
I thought that too after the previous post. Indeed some parts of the two approaches are remarkably similar: identify human flourishing as the objective good, then do the stuff that maximises it and avoid what reduces it.
The fact that both sides arrive at such different conclusions can have several possible explanations, of course: At least one is disingenuous; at least one went wrong in their reasoning somewhere; or it is harder to figure out what human flourishing means than they both think.
Something that required no reason 2000 years ago "still" requires none today.
I would contend they are making a bumper sticker.
I do find it interesting that folks who resort to that type of saying always refer to ``Adam and Steve'' and not, say,
"Irma and Eve''. It's as if their great objection to same sex behavior is concentrated on what they imagine two men do and not at all on what they imagine what two women might do.
Homosexuality has always existed in human history.
Why is it that homosexuality has NOT been looked upon favorably in all of human history? (With possible exceptions in the latter days of the Roman Empire and the greatness that was Greece.)
What has changed?
Because it has a relatively uncommon genetic component. That is an explanation completely consistent with the latest mainstream science and with its prevalence in history, but you won't accept it, because it doesn't fit your ideology.
Knowledge has changed - science is able to answer questions that were not answerable before. We now understand that it not a choice, but innate. Many more societies than the Greeks or Romans have not condemned homosexuality, but accepted people as they are. Maybe you should try. Also tradition is a poor reason for opposing anything.
I haven’t read the Finnis and George document that you’re interacting with here, but I’ve read other works by them and I think I can clear some things up for you and your readers. To make it interesting, I’ll put on my Finnis and George hat so to speak and try to address your objections in the way that Finnis and George might. For the record, while I consider myself a natural law theorist of a sort, I approach it from a very different angle and I am not sure what I think of their particular version of the theory. My final caveat is that I won’t be reproducing what I take to be the entirety of their case against same-sex marriage. Specifically, I’m going to leave out a discussion the connection that they draw between disrespecting the basic good of marriage and disrespecting the common good, mainly because this post is already long enough and I have other business to attend to. Anyway, let’s get on with the explanation.
To understand Finnis and George’s argument (and, by extension, natural law ethics as they see it), one needs to understand certain concepts and arguments found in the works of philosophers like Plato and Aristotle (I’ll focus on Aristotle) and also some concepts found in Immanuel Kant’s approach to ethics. The first concept one needs to grasp is what Aristotle in the Nicomachean Ethics calls “incontinence.” Don’t laugh--it doesn’t directly have anything to do with bladder control or adult diapers. It does, however, have something to do with self control and bodily integrity.
Incontinence, in this context, is a disparity between one or more aspects of oneself. For example, if a person dislocates their elbow, there would be a disparity (incontinence) between two parts of their body; namely, the joint surfaces of the elbow. Incontinence can also arise between two different aspects of oneself, such as when those with Bodily Integrity Identity Disorder don’t feel like one of their limbs belongs to them and they desire to have the limb amputated. Here, the incontinence seems to be between one’s body and one’s mental representation of one’s body. More commonly, perhaps all of us have experienced incontinence between our desires and our values. Sometimes we desire to do what we believe to be wrong, and sometimes we don’t desire to do what we believe to be right. Like Aristotle, Finnis and George think that incontinence is an inherently bad state. In some writings, Finnis uses the term “disintegration,” but the idea seems to be the same.
Another concept we’ll need to keep in mind is the distinction between intrinsic and extrinsic properties; in this case, the distinction between intrinsic and extrinsic *value*. Roughly, intrinsic properties are those that are in some sense “inside of” an entity. By contrast, extrinsic properties are grounded in something outside of the entity in question. For example, roundness is an intrinsic property of round things like oranges and baseballs. The property “being round” is “inside” the baseball. Similarly, possessing the capacity to reason is an intrinsic property of most human beings. By contrast, being a daughter is not an intrinsic property of anyone; it is an extrinsic property. This is because being a daughter necessarily requires the existence of another entity; namely, one’s mother.
With that in mind, let’s move on to the property type that Finnis and George have in mind; namely, intrinsic and extrinsic value. To illustrate this distinction, consider a specific baseball card, such as a 1987 Fleer Ruben Sierra rookie card. If everyone in the world desperately wanted a 1987 Fleer Ruben Sierra rookie card in their collection, its monetary value would skyrocket. On the other hand, if for some reason (the invention of personal electronics, let’s say) no one wanted to collect baseball cards anymore, the 1987 Ruben Sierra rookie card would have almost no value; perhaps even no value at all. Here’s the point: if a thing has extrinsic value, then its value originates in something outside of itself. By contrast, if a thing has intrinsic value, then it retains that value regardless of whether anyone (or anything) else values it. As a related aside, it seems plausible that if universal human rights exist, then human rights are grounded in some property or set of properties that is intrinsic to humans.
In addition to the concept of incontinence and the intrinsic/extrinsic value distinction, one needs to keep in mind a distinction that Immanuel Kant makes in the second section of his Groundwork for the Metaphysics of Morals; namely, the distinction between treating something as a mere means and treating something as an end in itself. (An internet search for the humanity formulation of the categorical imperative will likely bring this up.) To treat something as a mere means implies treating it as an object, which in turn implies treating the thing as if its value were merely extrinsic. Human inventions, for example, get their value from their ability to satisfy human desires or purposes, so treating them as objects is okay because they are, in fact, mere objects. By contrast, to treat something as an end in itself implies treating that thing in a way that (at least) recognizes the value inherent in that thing (i.e., its intrinsic value). In many (perhaps all) cases, this implies a moral limit on what we can and cannot intend to do, much less what we actually do, with that thing. For many philosophers, this is why slavery and prostitution are not just wrong, but inherently wrong: they involve treating something that is inherently valuable (i.e., a human being) as if he or she were a mere object (i.e., as if he or she did not have inherent value). The phrase, “you just want me for my body,” gets at this idea. Objectification is wrong because it only values a part (or certain parts) of the person while disvaluing or disregarding one or more of the other, intrinsically valuable aspects of that person.
With the above considerations in mind, I can now present what I take to be George’s and Finnis’s argument in the paragraphs you’ve quoted.
Let M in the following argument refer to the relationship that Finnis and George are calling marriage; namely, a relationship in which an adult man and an adult woman with common values and goals come together in a relationship that is monogamous, intended to be lifelong, and open to procreation.
Premise 1: M is something that, historically, humans have typically chosen to enter into.
Premise 2: M has its own basic structure (an adult man and adult woman, united for the rest of their lives by common purposes including an openness to procreation as a result of their sexual union, etc.).
Premise 3: M has its own complex value which includes the tendency to completely unite (as far as humanly possible) two people, the tendency to produce children, and the tendency to provide an environment in which those children will be cared for by their biological father and mother, among other things.
Premise 4: The value of M is grounded in M’s structure.
Premise 5: All non-marital sex acts, whether heterosexual, homosexual, or masturbatory, exhibit incontinence of some sort. For example, contraceptive heterosexual and masturbatory sex acts intentionally separate the orgasmic from the reproductive functions of one’s sex organs, thus producing incontinence between the purposes of one’s will and the purposes of one’s sex organs. Similarly, noncommittal, noncontraceptive, heterosexual sex acts split the reproductive and orgasmic purposes of our sex organs from the will to commit oneself entirely to the other for the other’s good and for the sake of any children that may result. Again, there exists incontinence between the purposes of one’s will and the purposes of one’s body. Homosexual sex acts (at best) can unite two peoples’ desires and wills, but no one can rationally intend that their homosexual sex acts produce children, thus (again) splitting the purposes of one’s will from the purposes of one’s sexual organs.
*This, I take it, gets at what they mean when they say that someone willing to perform a sex act that fails to embody permanent commitment that is procreative in type, “disable[s] themselves from willing in such a way that their sexual congress can actualize and express the good of marriage…” They do not say that the person is disabled from *ever* willing such things, only that, in this particular instance, a will oriented toward something other than what Finnis elsewhere calls authentically marital sex will cannot be oriented toward the good of marriage (see premise 3).
Premise 6: Intentionally treating the reproductive aspects of oneself as if those aspects do not matter involves treating oneself (or parts thereof) as mere objects.
Premise 7: Treating another person, or parts of another person, or oneself, or parts thereof, as objects is wrong. [See my above discussion of Kant and objectification.]
Premise 8: In designating a relationship “marriage,” we as a society give our full moral and emotional support to that relationship.
Premise 9: It is irrational to give one’s full moral or emotional support to immoral activities. Likewise, it is irrational to treat relationships that are of significantly different levels of intrinsic value as if they had the same level of intrinsic value.
Conclusion: it is irrational to designate homosexual unions as “marriages.”
Now, let’s consider your objections:
#1: Why should anyone agree to [premises 2 and 3]? I see no reason at all why a homosexual union cannot be just as oriented toward family life. Nor do I see why the children a homosexual couple adopts, or produces through in vitro fertilization, should be regarded as any less “their children” than those produced sexually.
To this, Finnis and George would likely answer that homosexual unions cannot be “just as oriented toward family life” as M-unions for at least three reasons. First, as a basic biological fact, homosexual sexual activity is sterile. Thus, unlike sex acts in M, which are inherently oriented in both mind and body toward procreation, homosexual acts are not and cannot be so oriented. They might be so-oriented in mind, but not in their sexual acts, nor can they be. Secondly, homosexual actions which result in children (i.e., surrogates and sperm donors) are incontinent insofar as they do not integrate sex with the involvement of both biological parents. Rather, they typically (and intentionally) remove one parent from the life of that child. Third, insofar as the biological purpose / function of a father or mother qua father or mother is to parent their offspring, the removed parent is willingly disrespecting themselves qua father or mother, as is the non-removed parent because, presumably, the non-removed parent typically does not want the removed parent (i.e., the surrogate or sperm donor) to be involved in the child’s life.
#2: Even granting for a moment the dubious premise that sex is morally permissible only in the context of an exclusive relationship between committed partners, why cannot homosexuals engage in such an exclusive relationship?
I suspect that Finnis and George’s answer to this one would be much the same as my reconstruction of their answer to your first question. Two men or two women may be exclusive in their sex acts, but their relationship still exhibits a degree of incontinence that M relationships do not. Their relationship therefore differs in both kind and value from M-relationships.
#3 They assert that “only a man and woman together can commit to a loving union of the kind inherently oriented to family life and appropriate to being the mother and father of their children.” But why should anyone agree to this?
Again, see my sketch of how they might respond to your first question. Also, your objection here and in #1 above seems to equivocate on the term “their children.” You seem to be using “their children” in the sense of “the children that they take responsibility for.” By contrast, in Finnis and George’s argument, “their children” seems to mean “their biological children.” There is no such thing as two men parenting “their biological child.” Similarly, omitting three-person IVF for the moment, there is no such thing as two women parenting their biological child. The child belongs biologically to at most one of them. Put differently, only one adult in the homosexual relationship can rightly claim, in George and Finnis’s sense, to be raising “their children.” Calling a homosexual relationship a marriage obscures this fact, thus spreading deception at a very fundamental level. Insofar as deception is bad, this is another reason not to promote same-sex marriage.
#4: [Finnis and George] begin by asserting that “marriage is a natural form of human association, with its own basic structure and value,” and then go on to assert that this basic structure and value involves a man and a woman in a loving relationship with an eye towards procreation. They present this as axiomatic. To judge from what they have written, they don’t seem to realize that this premise is precisely what is being challenged by those who defend the legitimacy of gay marriage”
I may be totally misreading you on this, but depending on which aspect of Finnis and George’s argument you’re objecting to, your objection may have one of two problems. First, if Finnis and George are using the word “marriage” to refer to what, in this nation, it has always meant, (up until about the year 2000, anyway), then, assuming it has always meant approximately what they think it means, their claim is analytically true. That is, their claim is true by definition. The type of relationship that in our country has historically been designated by the term “marriage,” is a natural form of human association with a basic structure and value.
Second, if your objection is that other forms of relationship are of equal value and thus deserving of the title “marriage,” or else that marriage is not actually all that valuable, in which case Finnis and George are begging the question by assuming that their normative ethical theory is the correct one, then it looks like you are faulting Finnis and George for not defending both their view of marriage *and* the normative ethical theory upon which their view is based.
While at some level anyone who wants to think carefully and critically about issues in applied ethics needs to be able to provide a principled defense of the normative ethical theory upon which his or her views in applied ethics are based, if this is the objection then it is asking too much of Finnis and George in the space of a single, article-length piece. Applied across the board, this implies that no one can argue about the morality of anything until they have first presented and defended their normative ethical theory *and* the moral metaphysics that grounds said normative ethical theory. Are you willing to hold defenders of same-sex marriage to this standard as well?
Anyway, as I said at the beginning of this post I’m still on the fence when it comes to Finnis and George’s version of natural law ethics, but their view strikes me as somewhat plausible. Among other things, the components of natural law ethics that I’ve mentioned (i.e., that incontinence is a bad thing, that humans and our parts have intrinsic value, and that it is wrong to treat humans or their parts as mere objects) have some support for them. Thus, natural law ethics is not vacuous, even if at the end of the day you don’t agree with it. Thanks for reading.
To eric #9 and Michael Fugate #10:
Here are two articles on studies drawing a possible genetic linkage to behavior. Neither provides proof nor even evidence beyond a reasonable doubt.
The first is on criminality:
The second is on homosexuality:
But assuming for the sake of argument that behavior IS genetically determined, should we lessen or eliminate the prosecution for violent “criminal” behavior?
To Michael Fugate #10:
“Many more societies than the Greeks or Romans have not condemned homosexuality, but accepted people as they are. Maybe you should try.”
Maybe I should try? I don’t have to try. I have NOT condemned homosexuality and I DO accept homosexuals. I just do NOT go for homosexual ACTS. Similarly, I do NOT go for fornication and adultery.
To Jason Rosenhouse:
If Jason were king, what would the Rosenhouse law be for these three guys’ nuptials?
Nah. Sex organs are not designed to be used exclusively for reproduction, so there is no incontinence as you claim. One can as easily argue that human sexuality (as it exists) is primarily about bonding of the adults or maintenance of a hierarchical group structure.
You do realize that even the RCC approves intercourse during infertile periods, right?
So, when a religious person pressures a gay man to go to 'reparative therapy' or society pressures a gay man into a heterosexual marriage he doesn't really want, that's forcing incontinence on him and that's bad, right? Laws criminalizing sodomy are bad because they create incontinence, right?
Keep in mind that the state objectifies marriage: the institution is the state's means to an end, which is a happy, stable, and prosperous population. So if I am understanding your argument right, F&G should be arguing that it is immoral for the state to grant any marriage license or anything like tax breaks to married couples. Stuff like tax breaks and automatic legal inheritance rights mean that the state is treating marriage as a means, rather than an end. The state should get out of the marriage business altogether, as its involvement degrades the institution. Why don't I see them arguing that? Oh, right, because this is all just an argument of convenience to attack gays. Consistent application of their principles is not one of their hobgoblins.
Premise 2 seems to be just flat out wrong. Marriages historically have had several forms. Given that F&G are catholic, ignoring the polygamy in the bible seems to particularly undermine their point.
Premise 5 is begging the question: they are asserting SSM is bad rather than empirically showing why its bad. Moreover, given that P5 applies to infertile straight people having sex and F&G don't argue against such unions, this would seem to indicate that they are applying their logic in a very biased (and therefore, ahem, incontinent) manner. Again, this indicates it's an argument of convenience rather than of principle.
So, when God removes one parent from the life of the child through untimely death, F&G will say that's immoral? Moreover, I think the RCC complaining about removing parents from the life of the child is rather rich, given their absolutely horrific past practice of removing children from unwed mothers (example). Yet again, this seems to be an argument of convenience - they suddenly decide a practice is immoral when gay people do it, even though they did it themselves for decades and call it moral when their God does it.
So, in their argument adoption is fundamentally immoral? Kinda weird then that the RCC runs adoptive services. This yet again seems to be an argument of convenience: when straights adopt, its okay. When gays adopt, its incontinent unnatural and bad.
Last two points. The entire thrust of F&G's argument is that the practice of SSM and same sex family building is immoral or at least not as good as the 'ideal' situation where two biological parents raise their kids in a monogamous marriage. But (1) that is legally irrelevant: the law doesn't just permit many acts that RCC theologians consider immoral, it explicitly protects many such acts as fundamental rights. Worshipping other gods is RCC-theologically immoral, but it is protected by the first amendment. As is taking the Lord's name in vain. So saying SSM is immoral according to Aristotle etc.. is not a relevant argument for whether it should be illegal. Moreover (2) the law does not restrict the right to marriage to ideal situations. We permit all manner of nonideal marriages. Implying or asserting that SSM should not be allowed because it is a nonideal method of raising children is a giant whopper of an argument of convenience; the fact that they make this argument against gays but not against nonideal straight marriages shows that all this philosophizing is really just a patina over animus towards gays: they use these arguments in an utterly inconsistent manner. They don't seem to be opposed to nonideal marriages, only nonideal gay ones. They don't seem to be opposed to incontinent marriages, only incontinent gay ones. They don't seem to be opposed to immoral conduct being legal, only immoral gay conduct being legal. Can we spot the theme here? Yes, we can.
We already to this; factors such as (inherited) mental illness are considered in determination of guilt and sentencing. But more importantly: what does this have to do with gay rights and SSM? I think you're wrapped around the same naturalistic fallacy as Finnis and George and many others: you're trying to argue the practice is unnatural when naturalness and unnaturalness has little or nothing to do with the legal rights we grant to citizens. We do not derive our 'oughts' from our 'is's'.
TrueProgressive, I think there are a number of issues that vitiate the argument you laid out.
Regarding Premise 2, marriage has historically had various "structures" as well as purposes. Certainly polygamy has been common throughout human history, either as formal marriages or as formally recognized non-marriage relationships (e.g., concubinage). As well, informal arrangements have historically undercut the notion of single sexual partners -- a huge proportion of marriages involve extra-marital sex. So an historical argument about the nature of marriage simply isn't convincing.
Regarding Premise 3, the list of qualities you provide may be descriptive, but does not indicate why such things should be valued. Current films tend to have a lot of explosions in them, but that's merely descriptive, and in no way says that we should value only movies that blow things up. There is a lot of question-begging being done in this premise.
Regarding Premise 5, there are numerous behaviours we engage that are accepted but could be described as "incontinent". For example, the act of consuming substances typically has both a nutritive and gustatory purpose. However, whenever someone drinks a Diet Coke, those two natural purposes are separated - gustation is satisfied, but not nutrition. Does this mean that it is immoral to drink diet sodas? If not, how is this in principle different from separating the pleasurable and reproductive aspects of sex?
And, of course, Premise 5 covers a lot more than just gay sex, including behaviours that are a lot more common and impact a lot more marriages. Under this premise, masturbation is out, as is oral sex, as is any form of contraception, as is any act that does not provide opportunity for sperm to contact eggs. This presumably would also include any sex where one of the partners is "naturally" sterile (e.g., post-menopausal). Why these situations are not of far greater concern than the far less frequent occurrence of gay sex is beyond me.
Premise 6 again carves a far too broad a stroke to be useful. I treat various aspects of myself as if they don't matter all the time. Any time I take an aspirin, I am treating the natural biological function of pain as if it doesn't matter. Any time I drink caffeine, I am stimulating my body in a way that ignores its natural functioning. Any time I drink alcohol, I am potentially ignoring the natural state of my cognitive faculties. Without further argumentation, it is silly to single out reproduction using this premise.
Premise 7 is just silly. I love me some Kant, but any time we engage in a commercial relationship with another human, we are treating them primarily as objects. I don't care about the intrinsic worth of the chef at the restaurant -- I just want them to make my food, and I will pay to have them do so. Likewise, my massage therapist engages in fairly physical contact with me, but I don't have an emotional bond with her -- I pay her to do what she does.
Premises 8 and 9 suddenly import notions of societal good without any supporting argumentation. What is the warrant that personal morality is the responsibility of society in all cases? Society doesn't sanction all behaviours that we might consider immoral (e.g., it isn't illegal to engage in adultery). So why should "society" be making distinctions regarding marriage? To this point in the argument, marriage has been presented as a personal good, based on its role for the individual, irrespective of its societal impact. One can't then simply import a notion of societal good, without providing a further account as to why it is desirable for society to apply its sanction for this behaviour but not for many others.
And, following the discussion of Premise 5, there are far more common behaviours that violate some aspect of "ideal" marriage that are not prohibited legally by society. Contraception is an obvious example, and a behaviour that occurs far more frequently (e.g., among 95% of US Catholics) -- why not focus on that? What about marriage between those where one partner is sterile? Why not make that illegal? What about adultery -- why shouldn't society throw people in jail if they cheat on their spouse? What about divorce? The fact that far more effort is put into opposing gay marriage than these other far more common "violations" of marriage suggests that the formal argument is really irrelevant.
"Natural law" arguments always import implicit, unargued premises in order to support their foregone conclusions. This case seems no different to me.
Yes, the basic problem is that Natural Law theorists use so many unargued premises that the actual argument does not matter. I've seen this in student essays too. The real 'work' is the importation of those unargued premises; the argument is epiphenomenal. Unserious, unscholarly, should be ignored by lay citizens and academics alike.
Natural Law should be deleted from all Academic Conferences - because it is not openminded, serious scholarship - it is arguing to a predetermined conclusion. Every blessed time. The weirdo at the pub can do that, with more entertainment. These guys seem more like the weirdo at the pub, not thinkers.
Very amusing example. We could have some fun constructing all sorts of others. The act of human communication can have two aspects: a pleasurable one (it is nice to talk to people) and a message-content one. By writing such a dry analytical piece, F&G have produced incontinence; they have sought to deliver a message without any of the pleasure of personally talking to someone. So they should stop writing such pieces, as it is immoral. The act of breathing naturally has two aspects: oxygen intake and perceiving (through smell) our natural surroundings. Air conditioning and lack of open windows removes our ability to do the second. So air conditioning is incontinent and therefore immoral...
I assume this is a rhetorical flourish and not a serious question. :)
In fairness, the RCC does generally try and make most of those behaviors illegal when it has the power and popularity to do so. So I would say their position on several of your examples (contraception, divorce, adultery) is consistent. That they have failed to criminalize those things in the western world does not imply they don't see them as criminal. Having said that, they are certainly not consistent in the case of post-menstrual women or barren women/impotent men getting married...when they are straight. Nor has their position been consistent in regards to adoption and the acceptance or tolerance of nonideal family structures. Straight nonideal structures get their upvote; gay nonideal structures get their downvote. As I said above, it is fairly easy to spot the theme here, and it isn't "being opposed to nonideal family structures."
Very true, but again, those behaviours are far more common that "attempted gay marriage", and so should be far more concerning and be the object of far more pressure from the Catholic Church. But I don't see huge protests arguing for criminalizing adultery, or for outlawing divorce -- they are pretty much solely focussed on gay marriage.
Arguably the whole drive of civilization is to allow us to be more and more "incontinent", to separate us from the inherent limitations of our biology.
As I said before the F&G article is straight up apologetics - without the Church and the Bible there would be no reasonable reason - certainly not natural law - to condemn SSM.
Yes, good point. We can also add religious asceticism to the list of things we do to attempt to produce incontinence (i.e., "disparity between one or more aspects of oneself"). What is meditation and fasting, if not an attempt to create such a disparity (in order to learn from it)? As I said before, when straights do it its okay. When the church does it its okay. When gays do it...suddenly, its bad.
Then don't do them. Nobody is forcing you or anybody else to do any of these things the RCC opposes. Why do you feel the need to control other individual's sexual behavior?
"control other individual’s sexual behavior?"
Control of the behavior of others is the primary motivation for development of religion.
Exactly. As I said earlier, even if one presumes that gay marriage somehow violates "Natural Law", one needs a further argument to explain why civil society should outlaw it. There is this huge leap from "it's not a good thing for individuals to do" to "the government should make it illegal".
"CHRISTIAN, n. One who believes that the New Testament is a divinely inspired book admirably suited to the spiritual needs of his neighbor..." -Ambrose Bierce.
To eric #15:
“We do not derive our ‘oughts’ from our ‘is’s’.”
Where ought we derive our “ought”s?
To Michael Fugate #23:
Nobody – not me, not the RCC – is forcing anyone to do anything and nobody feels the need to control other individual’s sexual behavior. The RCC PROposes, it does NOT IMpose.
And to put this in current events-speak, we don’t want to be forced to bake pizzas for a ceremony celebrating something we believe to be evil. Would you protect our right not to “cater” to the “wedding”?
No. If you provide a public service you don't get to choose the public simply because you don't like them, no matter how strongly you express your bigotry. It is amazing that such a a simple concept is too complicated for folks like you.
So does that extend beyond gay marriage as well? After all, you presumably believe that gay relationships themselves are evil, so do want to be able to refuse service to gay people, period?
And by the Natural Law analysis, re-marriage after divorce is evil, so should businesses be able to refuse baking cakes for the marriages of divorcees? How about just refusing service for divorcees, period? Or adulterers? Or people who masturbate?
If sn is referencing the pizza business in Indiana that gained fame for the "we wouldn't sell a pizza to people for a gay marriage" - that was an amazing little scam on their part. They later admitted they'd never been asked for such a thing, they also said they'd have no problem supplying self-admitted adulterers because "that's different and not a problem", then temporarily closed due to "threats" (unsupported assertions, naturally) and have raked in a huge amount of money in donations from sympathizers. That's a whole lot of fake "integrity" on display.
Snort! That's why they and their LDS buddies pumped all that money and resources in the Prop 8 campaign in California.
If the RCC were in power, we would have people fined or imprisoned for blasphemy, contraceptive use, divorce, adultery, etc. - unless you were a priest then they would just cover it up.
To Dean #28:
I don’t dislike gay people and neither does the RCC. I don’t discriminate against gay people and neither does the RCC.
What is amazing to me is that such a simple concept is too complicated for folks like you.
To explain, let’s change the picture, and imagine a Catholic photographer who does studio as well as on-location shoots. The Catholic photographer is petitioned by a Satanist to photograph a black mass complete with animal sacrifices and human sexual relations on the altar. Do you believe the Catholic photographer is legally obligated to provide his services in this context?
Or how about a T-shirt maker who’s also gay and a militant gay rights activist. The T-shirt maker is petitioned to make some T-shirts with sayings which are pro-traditional marriage and anti-same-sex “marriage”. Should the gay T-shirt maker be legally obligated to provide the services requested?
...or how about a T-shirt maker who is a white supremacist and is asked to make a T-shirt with a Star of David on it. Should the white supremacist T-shirt maker be legally obligated to provide the services requested?
You and every other Catholic should be forced to read the history of the RCC imposing its will on the citizens of Ireland. Read up on the Magdalene Laundries at the least.
From we the people. We fashioned our constitution and laws. We elect representatives to get together every year and modify those laws to make the system better. We appoint judges to rule on matters of law and pay the executive branch to carry out legislation and enforce judicial rulings.
Subjective? Yes. But so is theocracy; the only difference is we think elected officials are a better group of people to define and redefine laws than an unelected priesthood.
No such right exists. If you choose to open a public accommodation, you must serve the public...all of it. Communities used to legally discriminate against Anabaptists and Catholics. Then it was Jews. Then it was blacks. Then it was mixed-race couples. Now it is gays. The answer is no: you don't get to not-serve Anabaptists just because you think their practices are evil. Nor Catholics. Nor Jews. Nor mixed-race couples. Nor unwed mothers or old people nor any other group. Public accommodation means public.
No, since the "services" you imagine (animal sacrifice, sexual activities) are most likely not the traditional service the photographer offers (and may, in certain areas, be illegal). That really isn't a difficult question.
If you were to ask about photographing a "Satanist wedding" which is a service presided over by whatever official is deemed appropriate but has none of your other imaginary items: Yes, if that photographer regularly shoots weddings then he could not turn it down because of some foolish objection.
You almost make a reasonable question here. If
* the t-shirt businessman has a history of making shirts with protest themed slogans or political slogans, and
* nothing on the shirts is advocating violence, or has any threatening message
then yes, that business man too would not have any reason to refuse.
The fact that you can say that, and, sadly, probably have convinced yourself of it, speaks volumes. You've become so accustomed to lying to others about what you are and do that you've convinced yourself that those lies are actually the truth.
Subject to the same types of comments I made above, yes.
@Eric at 35: Here in West Michigan we have someone who is as extreme in his expressed views about continuing legal discrimination against same sex marriage as phil and sn are. He has commented on local stories:
* Same sex attracted people have every right to marry whomever they want. It just has to be someone of the opposite sex
* We need to go back to allowing businesses to place "No *****
allowed" signs in their windows and let them put any group (except for religions) in their windows. Then people would know where they stand.
It isn't their religion they are trying to protect: these folks are simply bigots who are upset that they are running out of "others" they can discriminate against and not be called on it. They simply lack the integrity to admit what they want and are hiding behind the veneer of their "faith".
Sorry, but you've got it wrong. Refusing to make a t-shirt that has a political statement you disagree with is not discrimination, and is perfectly legal.
You are more on track with the 'Satanist wedding' concept. The point is that you would be discriminating because of the couple's religion, not because of the nature of the ceremony.
It might be an interesting legal case if, for example, you could prove that the people were not actual Satanists, or not actually gay.
I'm somewhat repeating Dean AND my own posts on the other thread, but simply put: if someone is asking for a service he provides normally to others, he must provide it to gays (or Satanists in this case). You cannot provide a service to one client and refuse to provide essentially the same service to a different client...but you can refuse to provide certain services to anyone. Your prior example of the pizza store owner? If they choose not to cater to weddings period, instead deciding they will only focus on in-store and pick-up services, then no gay couple can force them to cater their wedding.
Back to your photographer: so, if his catalog includes pictures of some Santeria wedding he photographed complete with their animal sacrifices, then no, he can't deny Satanists on the grounds that he thinks Satanism is evil. OTOH if he has never shot animal sacrifice scenes and has consistently refused to do so for any client regardless of race, religion, etc... Then no, he doesn't have to shoot such a thing for Satanists.
Again, if the t-shirt maker has made lots of anti-this or anti-that t-shirts for other causes (especially ones he doesn't personally oppose), then no, he can't refuse service to anti-gay folks. OTOH if he categorically claims to not write "anti-X" messages regardless of the X, then yes he can refuse service to the anti-gay folks.
This has already essentially happened: an anti-gay activist went into a cake baking store and demanded a cake with anti-gay slogans on it. The baker refused because she doesn't put anti-anything slogans on her cakes. She offered to sell them a standard cake like she makes for everyone else. The issue went to court; the baker won, the anti-gay client lost. She cannot refuse to sell a standard cake to an anti-gay person just because she disagrees with their religious beliefs, but she can refuse to provide a type of service to them that she doesn't provide to anyone else regardless of race, creed, color, etc.
So, back to your earlier gay wedding pizza extravaganza. If the gay couple asks the pizzeria owner to specifically cut pepperonis in the shape of little penises, then the owner should be able to legally refuse no problem, because that is not a service pizza restaurants typically offer. But if the couple is just asking for the delivery of 12 standard pies with no special delivery treatment, then no, the store owner can't refuse to sell it to them.
Its interesting that See Noevo has completely abandoned the original Natural Law argument against SSM in favor of trying to fashion an equal rights/religious freedom defense against providing SSMs with services. Seems he finds the former vacuous, too.
"Refusing to make a t-shirt that has a political statement you disagree with is not discrimination, and is perfectly legal."
I don't think that is the case: if the operator routinely sells products with political positions on them, there would not seem to be a reason to deny service to them.
Who has pizzas catered to weddings anyway?
Dean @42: this particular example is from the news. A pizzeria recently put out a public statement saying they would never cater a gay wedding. They got $lots back in donations. So it was something of a very effective advertising campaign for them, but AFAIK they'd never been asked to cater a gay wedding in the first place. It was more of a publicity stunt.
They also said they would, however, serve known adulterers, because somehow "that's different". The hypocrisy would stun me if it weren't so common.
phil also quickly abandoned the Natural law argument when it was pointed out that nature is not a model for human sexual behavior - at least not the model he was looking for. Its the ignorance of organismal behavior that has people saying things like "the only purpose of one's sex organs are procreative". The possibilities are actually endless - one's imagination is the only limit.
Ask any guy whose had several beers if that's true for his penis.
(...which actually raises an interesting point about the aptly named "incontinence" -- if male genitalia is used both for sex and urination, does that mean that any act that separates the two is immoral? I guess those Natural Law folks are way more kinky than I realized!)
eric: Yeah, and my comment was a failed attempt at sarcasm.
That pizza place owner pulled off a fantastic scam: made that comment about not catering pizza (even though he'd never been approached), admitted that he would be fine serving pizza to adulterers (since that isn't as serious), claimed, without support, to be receiving threats and closed for a bit, and is collecting huge money on some funding site. David Hannum's comment on suckers was dead on.
Dean and Eric,
You don't appear to understand the difference between discrimination against a protected (or 'quasi-protected' in the case of LGBT) class, and ordinary business practice.
If a printer is a Republican, and doesn't want to make a campaign poster that's pro-HIllary, that is not discrimination. Being a Democrat has no status under the law. This issue is about discriminating against *individuals* who belong to a *class* that is recognized in the law as subject or potentially subject to discrimination.
It would be better if you were not as confused as the bigots.
The issue with the weddings is that you can't decouple the gay individual from the ceremony-- see again my point that if it were one of those 'fake gay marriages' these people fantasize about, there would be an interesting legal question involved.
zebra: you missed my comment - I said if the wording on the shirt were not different from that typically produced there would be no right to refuse.
There is also the question - which I'm guessing none of us are experts on - about where a statement of "anti gay" or "pro gay" or the like moves from mere social commentary to political statement.
It would be better too without hyperbole like that.
I get the feeling that certain people are using said organ to channel blood and therefore oxygen away from their brains when thinking gets difficult - as the topic at hand indicates. Maybe their hand is involved... no, don't go there.
No, I'm not being hyperbolic-- part of their distorted worldview, promoted by the politicians and right-wing media sources exploiting them, is that a gay wedding *is* a 'statement'.
There is *no* legal requirement for a business to perform *any* service *for anyone* except when there is a specific non-discrimination statute, and those only meet constitutional requirements when there is a "protected class" element.
I can refuse to serve you at my business just because "I don't like your looks", as long as there aren't a whole bunch of other people with the same look who fit into one of those protected categories, or potentially protected categories.
This is basic stuff if you want to discuss the issue.
"I can refuse to serve you at my business just because “I don’t like your looks”,"
That would never work.
According to wiki, the U.S. has 48 women-only colleges.
For our legal scholars here,
What is the basis in law for these colleges to refuse people of a certain gender, namely, men?
Duh. Read your own source.
"Mississippi University for Women changed its single-sex admissions policy to include men in 1982 following the U.S. Supreme Court ruling in Mississippi University for Women v. Hogan. The court found that the university would violate the Fourteenth Amendment's Equal Protection Clause if it denied admission to its nursing program on the basis of gender. The 5-4 opinion was written by Justice O'Connor, who stated that "In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened." She argued that there are a disproportionate number of women who are nurses, and that denying admission to men "lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy."
Jason Rosenhouse twice references “couple” in his piece on marriage (“Nor do I see why the children a homosexual COUPLE adopts, or produces through in vitro fertilization…”; “… the many women who describe marriage as a prison, or the many COUPLES who must choose between dissatisfying sex lives or having huge numbers of children…”
Is marriage a relationship for just a “couple”? If so, on what basis is marriage only for two?
What about these three guys? http://www.breitbart.com/national-security/2015/03/05/worlds-first-thre…
AFAIK the legal restriction has never been challenged up to SCOTUS or even any circuit court, so there isn't a formal legal position on why it must be illegal.
Personally I think there's an informed consent argument to be made (against it or at least for limiting it). Group social pressure can be much more coercive than one-on-one pressure, thus consent is a bigger issue. Obviously the same can be true for some monogamous relationships (think family pressure for arranged marriage) but I think observed history of actual polygamy shows that coercion to marry (at least for young women) is a much more prevalent problem in it than in monogamous marriages. With observed monogamy (at least in the western world), coercion seems to be the exception. With observed polygamy, it seems to be closer to the rule. Given that history and our understanding that group pressure can be harder to resist than individual pressure, I think its reasonable for the state to set restrictions on it or ban it. Its very similar to why we don't let older people marry teens (<18). Sure, some teens could handle it and there may be some instances where pressure and coercion don't play a part; but that situation is ripe for coercion in a way other monogamous relations are not, so we generally don't allow it. Well, polygamy is ripe for coercion, so the same logic applies. But that's just my opinion, it is certainly not any sort of official position.
I hope a highly-educated fan of good writing, like Jason Rosenhouse, will provide a clearer and more meaningful answer to my #57.
Not historically -- the Christian Bible has huge numbers of examples of plural marriage, as well as men with concubines as well as wives. So by the standards of the Bible, marriage can be between a man and multiple women, and he can have paramours on the side as well.
To Tulse #60:
Sorry, I’ll have to throw the flag on your violation.
Referencing the Bible, and what it appears to allow or disallow, is out-of-bounds here with this atheistic audience. You should know better.
So, on what basis would Tulse the atheist rule on the “marriage” of these three guys?
How about if they added a fourth, in the form of a nice armoire?
SN, my reference to the Bible was historical, as it indicates a cultural practice of the time. (You do believe the Bible is history, right?) My example had nothing to do with theology, although I am confused as to how a Christian could argue the Natural Law case for marriage without reference to such a plethora of obvious counter examples so close to home. If you would addres that, I'd be grateful.
But as for your specific question, I don't see why you care. You do realize that, married or not, these three gay men will continue to have sex together, right? So the marriage aspect doesn't really impact what you consider to be the "sin".
As for my answer, I don't have anything in principle against polygamous marriage, but like eric, whose lucid answer seems to have confused you, I would say that in practice, polygamy has historically often involved exploitation of young women and girls by older, more powerful men, undermining the notion of mutual consent.
And, in practice, some of the legal aspects of two-party marriage get very complex when more than two parties are involved, such as inheritance and medical decision-making. Such practicalities may make it impossible in practice to have full equivalent legal status for polygamous marriages, but no, I don't object to them in principle.
To Tulse #63:
If your reference to the Bible was historical then it should have included the WHOLE history. In Jesus Christ, the beginning and CULMINATION of historical development, marriage is between one man and one woman (cf. Mat 19:5; 1 Tim 3:2,12).
“…I am confused as to how a Christian could argue the Natural Law case for marriage without reference to such a plethora of obvious counter examples so close to home.”
Are you also confused as to how a Christian could argue the Natural Law case for respect for human life from conception to natural death when we have such a plethora of obvious counter examples so close to home (e.g. abortion)?
You continue to bring up theology, and get it wrong, with
“You do realize that, married or not, these three gay men will continue to have sex together, right? So the marriage aspect doesn’t really impact what you consider to be the “sin”.”
Actually, it does impact it. Sex outside of marriage is sinful. And since two people of the same gender can’t marry each other, then sex between them is sinful. If you’re going to bring up theology, Catholic theology, then at least get it right.
Since you have no problem in principle with polygamous marriage, you would be OK in principle with one “marriage” for all the adults in, say, New York City. That is, all the adults in NYC married to each other (provided, of course, that each gave “informed consent”). Thanks for letting me know that about you.
Eric and Tulse,
It is correct of course that we can't have 'polygamy' in the USA because there is currently no legal framework to accommodate it-- inheritance, medical decisions, divorce, government benefits, custody, and so on, would require a whole new set of laws and regulations.
The question then becomes-- if any religious group claimed discrimination, would it be incumbent on Federal and State governments to create such legislation *to conform to the practices of that specific religion*?
It seems to me that this would definitely be an unreasonable burden, and probably a violation of the Establishment Clause principles. Remember, "marriage" is a secular, legal institution, however much the SN's of the world deny it.
If people want to engage in a group contract of some kind, they are free to do so, but they can't compel the government to alter its existing policies for their convenience.
zebra: I think pro-polygamists would make a very similar civil rights argument as the current one: forbidding such unions without a concrete secular reason deprives them of equal protection of the law. Just as "you have equal protection - everyone is free to marry someone of their own race" didn't wash in Loving and "you have equal protection - everyone is free to marry someone of the opposite sex" is not washing now, a polygamist may argue "you have equal protection - everyone is free to marry exactly one other person at a time" shouldn't wash either. Yes, they ought to be able to compel the government to alter existing policies if those policies restrict their behavior, prevent them from marrying the people they want, and have no rational basis. Moreover we are not technically talking about one specific religion. While I'm sure (that in the US) Mormon splinter groups would be the vast majority of practitioners, I would bet that any court challenge involving polygamy is also going to include some areligious hippie-like group that wants to practice some form of plural marriage as a plaintiff. So you have to be able to fashion a counter-argument that says why the government can forbid this behavior, rather than just dismissing it as a practice of a specific religion which doesn't deserve exceptional treatment.
SN, I think you are confused as to the distinction between history and theology when you write:
eric, I think it could be argued that a compelling state interest to not allow polygamous marriages could entail the extreme complexity/ambiguity that they would produce around such things as inheritance, power of attorney, adoption rights, etc. (As one example, if one partner in such a marriage is unconscious and requires a medical decision, which other partner can authorize treatment? If one partner becomes pregnant and has a child, are all the other partners in the marriage legally considered the child's parents?) I don't know that such considerations would be a convincing argument, however, against US constitutional claims.
I also think one can potentially prohibit polygamous marriage because of its historical abuses of women, especially young girls, and the questions it raises about consent. Again, though, I don't know if such should be enough to survive a constitutional challenge in the US.
In all of this, it is important to remember that nothing is preventing groups of religious people from living as "married" in a religious sense, or groups of non-religious people from living as "married" in a ceremonial sense. The only question for the state is whether all participants in such groups should be provided all the legal rights and obligations provided to couples who marry. And, as I said above, I think working out how those rights and obligations would be assigned in the case of plural marriage is extremely complicated.
I don't think that argument would win, for two reasons. First, because we already have tools available that can deal with those issues. A Trust, for example, designates a legally binding rank-order list of several people for exactly things like inheritance, custody, decision-making in case of a coma, and so on. It seem to me to be almost the exact legal tool you think is missing and needed (before polygamy would work).
Secondly, I think this argument is weak because its a form of prior restraint, which at least in the US, we try to avoid. This argument is that polygamy might turn into a legal morass. Well yes, it might. But the freedom-respecting answer to that is that we should allow it until that problem crops up, not prevent the practice out of fear it might crop up.
I think that's the stronger argument because it cites known evidence that the practice presents a high risk of abuse to citizens (both in comparison to other marriage practices, and objectively in terms of percent of people in polygamous unions who were coerced through social pressure into them). But to your last point: me neither.
Language is important here. We don't "prohibit" individuals from engaging in "polygamy" because "polygamy" doesn't exist in the USA.
Tulse properly distinguishes between a group claiming to be "married in the eyes of God" and any legal status. IIRC, there was a Utah statute that did prohibit such a claim that was struck down.
Eric, if it isn't a religious group, there is no basis to claim discrimination-- again you have to understand the difference between protected classes and just any individual.
And the arguments to which you are comparing this are not at all the same-- marrying two people under current law would be bigamy, not polygamy. It's a standard contract, and as written would be fraudulent and unenforceable-- just like if you sold your house to two different people at the same time.
On the exploitation thing: I don't know that there's really enough evidence to make a case for compelling interest. Until recently, there were a couple of US States that allowed marriage at 14, with parental consent, I believe.
zebra, I still don't think you're really addressing the issue. Bigamy is illegal. If someone sues and asks on what rational basis this practice is illegal when the 14th amendment's equal protection clause covers their right to marry who they want, what does the government say to them? The fact that plural marriage advocates are not a protected class is irrelevant; the government must still provide a rational basis in equal protection challenges even if the plaintiff isn't part of a protected class. Personally, I think there is a rational basis and I've described what I think that is. But I think you are wrong not to see the parallels or think the government will be able to dismiss such challenges out of hand as not parallel.
I think I just gave the rational basis for bigamy being illegal-- it would be a fraudulent and unenforceable contract as written. If you want to try to rebut that, go ahead.
"Marry" means "enter into the standard legal contract", and nothing more. You can't cite the 14th amendment as a license to commit fraud. Again, would you make the same 14th amendment claim in selling your house to two different people at the same time? After all, you can "sell your house to whom you want", right?
BTW I actually don't see where you did make a case against-- which statement are you talking about?
zebra, I think you are question-begging here, as it sounds to me as if you're saying that one can't be a bigamist because it is illegal. I think we all recognize that it is illegal, but the question is does that pass constitutional muster -- should it be illegal.
You say that bigamy is fraudulent, and under the standard conception of "bigamy", that is true -- two parties are unknowingly married to the same person, and each believes that they have exclusive legal rights regarding that person. That is not, however, what is meant when talking about polygamous marriage. In the version we are contemplating, all parties are aware of the relationships, all parties consent, and the legal arrangements are made to accommodate the relationships. There is no fraud.
Under such circumstances, it is much harder to make a constitutional case against these kind of arrangements.
You are confusing several issues. There *is* no case against having polygamy as an established practice. But that can only happen through legislation, not through the courts.
Let's imagine that at the founding of our little republic there was no such thing as "marriage" at all. Would you be able to claim that there was not "equal protection" because some people wanted to codify their particular religious practice of monogamy, with attendant property rules and so on? How would that work-- SCOTUS would order Congress to pass a law for those people, just because they want it? That's not how our system works.
So no, it isn't question-begging to point out that equal protection *under the law* refers to *existing* law, not some hypothetical construct which, as you said earlier, would open up a very convoluted can of worms in many areas.
I think that is a very open question. Opponents of same-sex marriage have argued that the courts cannot create a right for SSM because it is fundamentally different than traditional marriage, but the courts have disagreed with that notion. What is under discussion is whether marriage rights should be extended to a group of more than two people -- this isn't about a completely different practice (as your hypothetical suggests).
But I agree that this is a very convoluted area legally, and it might very well be that the Supreme Court would side with your view of things (certainly the current court would).
But the reality is that SSM is not different *at all* in the legal construction, only in the fundamentalist religious context. No new legislation is required. Which I think makes my point; you offer no concrete suggestion of what "extending marriage rights" even means.
It means letting a person legally marry more than one other person. What specifically did you mean?
Using the term "extend" is rhetorical equivocation.
"marry" means the standard contract.
If you mean a different contract, then what is it? We both agree there is no simple answer to that.
I agree that there is no simple answer to how the current legal framework would handle multiple partners, as it does lead to a host of complexities. I'm not sure, however, that this fact rules out the notion of the courts ruling that plural marriage must be legally legitimized.
For example, to use your inspiration of a hypothetical, presume that the country had been founded with legally-mandated primogeniture, where the first-born male inherited everything. I can see the courts ruling that such a situation violated equal protection, even though various laws around inheritance would have to be changed, rather than just "extended" (for example, one would need laws around division of property).
At the end of the day, though, as I've said before, I don't know if an actual constitutional case can be made for plural marriage, and you may well be correct that one cannot. So I'm happy to leave the conversation here.
OK. A good discussion.
Marriage can come with certain tax benefits.
How about “marriage” between platonic friends who may want to adopt kids or act as foster parents? How about a non-sexual “marriage” between brother and sister who may want to do the same?
Is that currently illegal?
Of course it isn't, but SN has difficulty with separating the concept of civil marriage from the religious definition of marriage. According to the Catholic definition of marriage, two platonic friends marrying would be unacceptable. Obviously, we don't legally require married people to have sexual relations.
As I pointed out back at #38, the (absurd) fake-gay-wedding meme brings up an interesting question as to whether an anti-discrimination statute would have to explicitly include such a possibility and whether that would be constitutional.
You would not be discriminating against gay individuals if you refused to photograph such a wedding.
I agree with Tulse, you seem to be arguing circularly here: that bigamy is fraudulent because it is against the law...and what do you cite as your rational basis for it being against the law? You say its fraudulent. No, that doesn't work. A rational basis can't cite the law that makes the behavior illegal as the basis.
The question here is whether the laws against plural marriage are constitutional or not. I also agree with Tulse that I don't think 'its a matter for legislators' is going to fly. The courts are the right place to go to answer the question of whether the 14th amendment's equal protection clause means that plural marriage must be allowed (because banning it would be unconstitutional) or not. Legislators can't and don't answer such questions. That was decided in Marbury.
Given that the government's purpose in granting tax benefits is to create stable prosperous households, I don't really have a problem with any of that. After all, those friends will get a tax benefit for their adopted dependents, and one could possibly get a benefit from the other as a dependent. Likewise a sibling can already get a tax benefit if the other is a dependent in their household. You really seem obsessed with imagining sex, See Noevo. But even today the government doesn't require people to have a sexual relationship before it gives them tax benefits for creating stable households, so why should it really matter to the government if two people that want to form a stable long-term household are going to have sex together or not?
The government would need to prevent double dipping, of course (pick spouse or dependent, not both). Also the government would have to be on the lookout for sham marriages where the participants have no intention of creating a stable household...but guess what? The government already does this. So I don't see those things as big hurdles.
For that matter, I think it would be a big positive step if unmarried people could put their siblings on their health insurance too. That would also help with the general welfare (IMO). I understand the need to limit discount rates to family, but look, my sister is my family too. If I'm not burdening my company or the government with a wife and/or dependent on my discounted health insurance rate, then why not allow me to stick a sibling on my plan instead? Would me putting my sister on my health insurance imply that I'm some sort of immorally incestuous sexual pervert? I don't think so.
Is anyone really surprised at this?
This has been covered but I'll give you one more try.
1. Bigamy is illegal because it creates fraudulent, unenforceable, contracts. I gave you the example of my selling my house to two different people at the same time.
2. It doesn't matter if all the parties are aware of what is being done. That just makes everyone a participant in the fraud.
3. A fraudulent contract affects other entities than the parties-- in the case of marriage, the various levels of government are even indirectly parties to the agreement.
If this is too hard for you to understand, I don't know what further explanation would help. You can't use the standard marriage contract, which specifies *exclusive* rights and obligations, with *multiple* partners.
So, you would have to create a new contractual and regulatory framework, *which courts cannot do* for this kind of problem. Courts have no basis to decide what percentage of Social Security survivor benefits goes to the first wife v the second or third, for example. That's what legislatures do.
I repeat, there is no 'prohibition' against individuals engaging in polygamy because there is no polygamy for them to engage in. So there is no basis for the kind of lawsuit you are talking about.
Hope that helps. And let me stipulate that I have absolutely no objection to some State passing polygamy legislation as long as it doesn't create an unfair burden on the Federal system in terms of taxation and other economic effects.
They are fraudulent and unenforceable because it is illegal. If it wasn't illegal, it wouldn't be fraudulent. Just like if I make out a will and leave my stuff to my kids but leave them unnamed, the will does not become fraudulent and unenforceable if I have another kid. It may complicate things, but it doesn't lead to fraud. You are allowed to make contracts with more than one person at a time. You are allowed to make group contracts. Bigamy is not fraudulent merely because it involves a group contract.
You're sort of right; they wouldn't do that sort of work. What they would do is tell the legislative and executive branches that this sort of agreement is unconstitutional to prevent. Those two branches would then have to figure out how to promulgate this ruling via state and local legal and bureaucratic frameworks. However, I fail to see how that has anything to do with the constitutionality of laws against it. Your argument seems to be that it must be constitutional to forbid it because the legislative branch has not yet codified how it would work if it were legal. That's putting the cart before the horse. The legislative branch would never bother codifying how it would work until it was made legal...in this case, by the judicial branch.
What??!? Substitute "child" for "wife" in your sentence and just think about how ludicrous that comment is. Courts decide between legally unclear competing survivor claims all the time. Sure they follow legal frameworks set up by legislators. But again, this has nothing to do with the constitutionality of laws against plural marriage. If someone brings a case to the judicial branch saying the current laws against it are unconstitutional, the judge isn't going to respond that he can't or won't rule on the matter because the legislative branch is the branch of government that would be responsible for building the guidelines for plural marriages if they were legal. That makes no sense whatsoever. At least, not to me.
Certainly they are -- what else could they be for?
You do realize that the RCC is not always philosophically consistent, right?