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On Gay Marriage

This is not bad from Bob Herbert in the New York Times:

"In the [1967] Loving case a mixed-race married couple was charged with violating Virginia's Racial Integrity Act. The judge who sentenced the couple wrote:

"'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangements there would be no cause for [interracial] marriages. The fact that he separated the races shows that he did not intend for the races to mix.'

"Now we're told that he doesn't want gays to marry. That there is something unnatural about the whole idea of men marrying men and women marrying women. That it's abhorrent to much of the population, just as interracial marriages were (and to many, still are) abhorrent."

This does get to the heart of the matter. There is no doubt that the idea of two men or two women being married seems strange and unfamiliar (well, it is unfamiliar, after all), that it is upsetting to many, that it provokes hard-to-articulate feelings of unease and, in some, revulsion. It is, in that regard, no different than the feelings very common fifty years ago, and still sometimes found today, regarding interracial marriage. In both cases, it is impossible for anyone to give a rational explanation for their opposition. (A good illustration are the postings at this conservative site.)

It seems to me there have been three general kinds of attempts to offer a rational basis for opposition to gay marriage: appeals to religion, tradition, and the "essential" nature of marriage.

Assuming that religious faith can be rationally defended--I will assume, arguendo, that it can be--it's not at all clear that those defenses suffice to underwrite the rationality of claims about God's intentions on matters like gay marriage. Belief in God is one thing; claims to authoritative epistemic access to God's intentions is another. The rationality of claims of the latter sort has never been adequately defended.

Reliance on "tradition" is not rational in the absence of (a) a defense of the rationality of the tradition, or (b) a defense of the rationality of deference to tradition. Obviously if the rationality of the tradition could be defended there would be no need to appeal to the tradition in the first place. And the only defenses of the rationality of deference to tradition--assuming they're successful--establish, at best, that tradition is a defeasible guide to what we should do today, and thus can not themselves fully dodge the question of why tradition should not be defeated in this instance. (Again, I'm assuming, arguendo, that the "tradition" supports the claims of the opponents of gay marriage: for some pertinent doubts, see the interview with Sanford Levinson linked at the end of this posting.)

Finally, arguments based on claims about the essential nature of marriage--like those by John Finnis and Robert George--are, it is fair to say, generally recognized as reductios: the arguments are so tortured and so wrought with bizarre premises as to lead one agnostic on the subject to be highly suspicious. (A thinner version of these arguments from Doug Kmiec is here. Larry Solum [San Diego Law] comments on some of the peculiarities of the Kmiec argument here.)

Proponents of gay marriage, meanwhile, sometimes make the mistake of laughing off, without response, those who complain that permitting gay marriages would open the door to polygamous and incestuous marriages. As Nietzsche remarked, the institution of marriage ceased to exist as an institution as soon as the idea of marriage-for-love became the norm (what institution is based on such a fickle feeling, Nietzsche wondered?). But if there is no discernible reason why marriage-for-love should exclude people of the same sex--and that is the crux of the matter, isn't it?--it is at least reasonable to ask why it should exclude four women in love with the same man? Or why it should exclude relatives who are in love?

Some answers do suggest themselves. Polygamous relationships seem, for example, more wrought with the potential for demeaning exploitation than for expressions of love. (But would we want to treat the absence of demeaning exploitation as a necessary condition for marriage? And if so, how would such a criterion be enforced?) More clearcut is the case against incestuous marriage: the loving relationships between family members would be badly damaged if the specter of a different kind of love and relationship were always potentially in the offing.

But this latter point about the dangers attendant on permitting incestuous marriages gets to what I suspect is the primary cause of the fury over gay marriage. Here's something we learned from Hume and Nietzsche: when deeply held beliefs have no rational foundation, we need to ask what it is about people that would cause them nonetheless to embrace the belief so fervently? Opposition to gay marriage has no rational foundation as far as I can see. So why is the opposition so deeply felt? My guess--this is simply speculation on my part (though not, as it were, rank speculation: see here)--is that there is a lot of latent and not-so-latent homosexual desire out there, which many people experience as abhorrent and alarming and want to fend off. One way to fend off such desires is to rely on social and moral attitudes that make their satisfaction off limits. But if society at large puts the imprimatur of legitimacy on homosexual relationships, can there be any doubt that those suffering, consciously or otherwise, from latent homosexual impulses will feel deeply threatened by "the enemy within"?

By keeping incestuous impulses in check with a robust taboo on incest, we make possible the undisputed human good of familial love. But by keeping homosexual impulses in check with a robust taboo on homosexuality, we achieve nothing of any human value, other than purchasing, at least temporarily, some psychological peace for those who can't come to terms with their own desires.

An addendum: for more on gay marriage, and the prospects of a constitutional amendment, see this illuminating interview with my colleague Sanford Levinson.)

UPDATE: Not long after posting this, I received the following message from the Christian Family Coalition (with my remarks in brackets):

"The Human Rights Campaign, the most powerful homosexual political organization in America, has given $10,000 to the homosexual group Equality Florida. [The "most powerful homosexual political organization in America" can only afford $10,000 to support legislation that teaches children not to hate?] This group is trying to force kindergarten children to take homosexual and transsexual sensitivity training classes.

"Last year we STOPPED this homosexual indoctrination bill from becoming law!

"As we write to you, we are in Tallahassee trying to stop this homosexual indoctrination bill from becoming law. Homosexual groups have sent over one-hundred (100) homosexual students to try to pass this homosexual indoctrination bill!

"If they pass it in Florida, they will go nationwide, they have already passed homosexual indoctrination laws for kindergarten children in eight (8) states!

"We can defeat this effort to force our schoolchildren to become indoctrinated in the homosexual agenda, but we need your immediate financial help to do it! Please stop whatever you are doing right now and make a secured on-line donation of any amount."

Cause-and-effect, or just an accident of timing? (Actually, I'm pretty sure the latter, since somehow I got on the Christian Family Coalition mailing list.)

ANOTHER UPDATE: Reader David Watkins writes:

"I agree that latent homosexual desire is probably part of the story here, but I think there are some much more general tendencies at work. As a first premise, I suggest that we all have a great deal of preferences of various sorts that aren't fully defensible rationally (they aren't necessarily irrational either). As JS Mill noted, we have a bad habit of encoding the likings and dislikings of society into law (On Liberty, Chapter one). Not all or even most of the likings and dislikings of society, mind you, but some of them. My theory is that most people are small-c conservatives when it comes to encoding their likings and dislikings into law, and it takes a clear, strong, and oft-iterated justice-based argument to change that. As an example, I know several parents of young children who are quite nervous about the level of gratuitous violence their kids see on TV, and rather wish it wasn't there. I would suspect that many of these people agree with the FCC keeping sex, nudity and bad language off TV, but would be less enthusiastic and more conflicted about active state intervention to remove violence. My hunch is that people with similar prefences in Canada, where violence is more restricted and sex and language less so, would have the opposite attitudes toward active state intervention. This argument about public opinion is based on conjecture rather than research, so I could quite certainly be wrong.

"Of course, as I suggested, clear, forceful justice-based arguments can turn the tide. Recall that 95%+ white Americans supported bans on interracial marriage as late as 1958. I don't know what the numbers are now, but I'd wager there are many, many people who would prefer their children date and marry people of the same race, but wouldn't dream of supporting a law to go along with that preference. I suspect that's where we're headed with gay marriage.

"Great blog, especially strong work on the Texas Taliban and the pernicious attempts to push ID wankery into the realm of respectibility."