Tuesday, November 18, 2014

Gay Marriage: Can the government avoid taking sides?


This discussion assumes a background knowledge of Jeff Jordan's essay " Homosexuality and Discrimination," summarized here. (Jordan was my office mate at the Center for Philosophy of Religion in 1989-90). 
Same-Sex Marriage: Some Further Reflections
Accommodation, not declaration
What Jordan has right
I think Jeff has this much right, that government should, as far as possible, not try to declare winners and losers where ethical questions like the moral status of homosexuality are concerned. I also accept C. S. Lewis’s argument that Christians should not expect government to enforce a Christian understanding of marriage on the citizenry.

Who wants a declaration on this issue?
Well, lots of people. The Religious Right, for example, wants government to stand up for marriage as a relation between one man and one woman, and is looking for an affirmation of the moral superiority of traditional marriage on the part of government. Here the “Christian America” argument comes into play: America is founded on Christianity, therefore we should expect everyone in society to adhere to Christian moral standard where marriage is concerned, and this would involve rejection of homosexual relationships as morally unacceptable.
But who else wants this?
Gay activists, of course! They are looking to gay marriage as a stamp of approval on their relationships, and an implied message that those who disapprove of them are no better than bigots.
Thus we have the lawsuit against a religious baker who didn’t want to do a cake for a gay wedding, and a regulation on the part of the American Philosophical Association according to which Christian colleges that required teachers to sign a code of conduct which precludes sex outside of (traditional) marriage would be flagged as APA code violators, since it would preclude the appointment of sexually active gays and lesbians.
In Canada and Britain, I have heard of cases where preaching the traditional Christian view of homosexual conduct has been treated as hate speech.
The Brandon Eich case from Mozilla
Brandon Eich became the CEO of Mozilla. When it was discovered that he had contributed money to support the Proposition 8 campaign in California, his browser was boycotted by some groups, and as a result he had to step down as CEO of the browser.
Chick-Fil-A has faced boycotts because its leadership has opposed same-sex marriage, though some gay people have considered this an overreach.
The miscegenation parallel
Defenders of same-sex marriage often criticize opponents by arguing that opposition to homosexual relationships is equivalent to opposing mixed-race marriages. Just as opposition to mixed-race marriages is evidence of bigotry, anything less the full acceptance of homosexuality is similarly bigoted.
However, there has to be a distinction between concerns about behavior, and problems caused by non-behavioral issues, such as race.
What has changed our minds
I think we have discovered that sexual orientation is, in many cases not changeable. I don’t think you can argue that there are no choices that can be made in this area, since some people are bisexual. The case of Exodus International, the ex-gay movement, where two of the leaders got involved with one another and returned to homosexuality, seems to be a warning about how far this can be pushed.
But are sexual relationships required for the pursuit of happiness?
What if your sexual orientation is toward preteen boys. In that case, to me moral, it seems to me you would have to pass on your sex life, since there would be no moral way to have a sex life, that is, no way, without doing grievous harm to your partners.
Different groups view this differently
Secularists tend to see no problem with homosexuality, although the existence of homosexuality does present a prima facie difficulty for evolutionary explanation, for obvious reasons. (I actually asked some evolutionary biologists how they explained it).
For some reason, religious believers are not eager to bring this up as evidence of intelligent design.
Conservative religious believers
Typically take anti-gay passages in the Bible at face value, although there is a debate concerning interpretation.
Pro-gay religionists
Here is a defense of their position, from Mel White
Well, no you don’t.
However, there are economic issues involved. What the government does get involved with are things like end of life decisions, spousal benefits, etc. Can you write all that stuff into the law without implying anything about the moral status of homosexuality. If so, do we use the m-word, or not?



27 comments:

B. Prokop said...

In light of recent events where photographers, bakers, and florists, etc., have been threatened with legal sanction and/or being run out of business if they fail to toe the Party Line and violate their own deeply held principles, I have concluded that the best solution may be for government to get out of the marriage business altogether.

No special status for married couples, no "Married Filing Jointly" status on our tax returns, no nothing. Make marriage a strictly religious, sacramental affair, and keep the state's hands off of it.

Because, unfortunately, as long as the state provides benefits and grants special status to married couples, then it does indeed have a case for its shoving its nose into the institution. So let's have a clean break! Establish some sort of "civil union" status for governmental purposes, and keep marriages in the churches (and synagogues, temples, etc.) where it belongs.

Dan Gillson said...

Bob, you should read this article about public accommodation and discrimination.

Crude said...

White's reasoning is badly flawed.

First, you will see social conservatives citing this decision as encroaching Gay Tyranny and proof that soon the government may be forcing churches at subpoena-point to conduct gay marriages.

Actually, all they need to point at is not the encroaching, but the arrived SJW tyranny where LGBT activists can purposefully pick out businesses that don't want to serve their same-sex wedding, forcing them to do so purely out of spite.

To which I think the eventual solution is going to be 'Alright, but you have to pay them no matter what artistic touches they put on their cake', along with some very creative works. Everybody wins, I suppose.

But the real point is, it's not an 'encroaching tyranny' the SoCons are worried about, but the actual, present tyranny. To use an example: people who are pro-Palestinian aren't taking about the coming Israeli Tyranny. They think that tyranny is here.

Second, the Court raises the same point that I have been making: that there is no logical way to attack anti-discrimination laws when they apply to gays and lesbians without attacking them when they apply to, for instance, African-Americans.

Sure there is: point out that what's being attacked is not 'gays' or 'lesbians' but a particular act. Which is exactly what has come up again and again in these court cases.

Gays and lesbians will be served. Even gay and lesbian couples. But a same-sex marriage - regardless of whether the two men or two women are straight - is a different situation. No need to even appeal to the orientation there, much less the race, or otherwise.

So, White's wrong. But, to be clear: White's not trying to be fair to begin with.

Adding in some boilerplate about how important it is to protect the freedom of religion sensibilities is a tremendous load when said freedom amounts to 'the right to think something, in the privacy of your own home or maybe the confines of your church, barred increasingly from living it out or communicating it in your daily life, and possibly to your children'.

B. Prokop said...

Dan,

I've heard the argument before - too many times to count. Its fatal flaw is that racism has absolutely nothing to do with this!!! Why do people keep insisting on conflating two issues that are totally non-intersecting? Bringing up race is in this context is akin to something like this:

A - "I don't like peach pie."

B - "What the matter with you? Don't you realize that Minnesota is north of Iowa?"

The logic is the same.

Crude said...

Bob,

The logic is supposed to be that sexuality is akin to race in that it's beyond anyone's control to change.

Part of the problem here is that this line is often played by people who argue that gender and almost everything related to gender is a social construct.

Another part of the problem is that it, superficially, it would mean that bisexuals are entirely subject to being told who they can and can't marry.

A third part is, as I've pointed out, even discrimination against same-sex marriage doesn't single out gays and lesbians, since A) two straight people can be married, and B) a lesbian can marry someone of the opposite sex.

I think the best chance of salvaging the sort of argument White wants to go for is trying to plant his flag in the case of a hypothetical person against race-mixed marriages. But to do that, he'd have to give up the 1:1 comparison between sexuality and race (forget it), and you wouldn't get a 1:1 comparison with race mixing, since unless some magic or extremely interesting science is in play, there won't be any mixing either.

The problem with White - and a problem with a lot of modern discourse - is that the best shot he has at intellectually defending his position would be to admit the complications of his case. And complications are anathema. You must not just be right, but clearly and unambiguously right, for the Social Justice Warrior, the Cultist of Gnu, and yes, many conservatives as well. Anything less and the world crumbles.

Dan Gillson said...

Crude,

You didn't actually prove how Ken's reasoning is badly flawed. To do that you have to show how Ken's conclusion (i.e., that compliance public accommodation laws don't violate first amendment rights) doesn't follow from his premises (e.g., the decision of the New Mexico Supreme Court.)

"Sure there is: point out that what's being attacked is not 'gays' or 'lesbians' but a particular act." ... I'm not sure how "I don't want to serve you because you have butt sex" is much different than "I don't want to serve you because you're gay." If someone is gay, he is probably doing the act in question, unless he specifies otherwise.

Bob,

Bringing up race (a species) in the context of anti-discrimination laws (the genus) is completely relevant. If we are talking about laws preventing discrimination, why is it not okay to talk about two species of discrimination?

Crude said...

Dan,

You didn't actually prove how Ken's reasoning is badly flawed. To do that you have to show how Ken's conclusion (i.e., that compliance public accommodation laws don't violate first amendment rights) doesn't follow from his premises (e.g., the decision of the New Mexico Supreme Court.)

I took out the two main points he was offering for his reasoning - I think that's the absolute best that can be hoped for here.

Specifically, White argued that there was no logical way to argue against gay marriage or providing services for a gay wedding that could not be immediately deployed against blacks. His words, not mine. But that's precisely what I did.

As such, I'm undercutting the New Mexican Supreme Court from the outset. They gave their decision - I'm showing why it's flawed. Otherwise you can just say 'It doesn't violate free speech, because the court said what it said, and that's the end of it even if their argument is bad'.

If we are talking about laws preventing discrimination, why is it not okay to talk about two species of discrimination?

What's not okay is to pretend they're isomorphic cases when they don't - which is a large part of what I argued.

If I turned it around and pointed out that Christians were being discriminated against just as Palestinians are in Israel, again, I think many would have a similar reply ('Wait, okay, fine - those are two types of discrimination, I grant you, but they are dissimilar in relevant senses..!').

Dan Gillson said...

Crude,

"Specifically, White argued that there was no logical way to argue against gay marriage or providing services for a gay wedding that could not be immediately deployed against blacks. His words, not mine. But that's precisely what I did." ... No, White argued that you can't attack anti-discrimination laws when they apply gay and lesbians without also attacking them when they apply to other groups:

"If people want to argue that freedom of speech, or of association, or free exercise of religion means that a business should be able to refuse to provide services to gays and lesbians, then I think they need to be prepared to make the argument that those same rights protect refusal to do business with Jews or African-Americans or any other group you can name."

It's simply a matter of the law being consistent.

"As such, I'm undercutting the New Mexican Supreme Court from the outset." ... No, you're not. The Supreme Court decision distinguishes between a business owner's personal beliefs and the way said business owner conducts himself as a merchant who takes advantage of public accommodations. You'd have prove that the distinction is invalid.

"What's not okay is to pretend they're isomorphic cases when they don't - which is a large part of what I argued." ... I agree, the two cases under consideration aren't isomorphic in the sense that they are bijective, but no one is saying that they are. (Good word choice, by the way.) That said, there are still relevant isomorphisms between racial homosexual discrimination, e.g., the fact that gays and racial minorities are legally classified as suspect classes.

Crude said...

Dan,

No, White argued that you can't attack anti-discrimination laws when they apply gay and lesbians without also attacking them when they apply to other groups:

White's not going for 'other groups', full stop. That's why he keeps saying 'jews' and 'blacks' - because what he wants to do is force the person who refuses to serve a same sex wedding to be intellectually forced to say 'and you have a right not to serve a black man or a jew too, because my reasoning must cover those cases as well.'

I'm showing why that simply doesn't follow. White said 'no logical argument', and I gave one.

I agree, the two cases under consideration aren't isomorphic in the sense that they are bijective, but no one is saying that they are.

White is saying that they are, in the relevant way, isomorphic. I think I've demonstrated that they simply are not.

In fact, I stated straightforwardly a way to oppose same-sex marriage that goes through even with the complete lack of homosexual parties. That immediately clears grievances about 'suspect classes' from the table - another area I question here, but which is a different topic.

Will White argue that people are A-OK with performing same-sex marriages between two heterosexuals?

Dan Gillson said...

Crude,

"... because what he wants to do is force the person who refuses to serve a same sex wedding to be intellectually forced to say 'and you have a right not to serve a black man or a jew too, because my reasoning must cover those cases as well.'" ... I think your reading a level of animus in White's post that's not there. It's not about what White wants to do. It's about what sort of precedent the law sets. You may have moral or religious reasons for discriminating in one case, but not in the other, but those reasons might not--or in this case, don't--translate into compelling legal reasons to discriminate in one case but not the other.

"Will White argue that people are A-OK with performing same-sex marriages between two heterosexuals?" ... I have no idea. You'd have to ask him, but I think that he'd think that it was, uh, queer for heterosexual to get gay-married.

Anyways, I think you'd like the Popehat blog, especially some of Clark's contributions. (Clark being Catholic, socially conservative-ish, and libertarian.)

Crude said...

Dan,

I think your reading a level of animus in White's post that's not there. It's not about what White wants to do. It's about what sort of precedent the law sets. You may have moral or religious reasons for discriminating in one case, but not in the other, but those reasons might not--or in this case, don't--translate into compelling legal reasons to discriminate in one case but not the other.

We may just have to disagree here, but when White says 'no logical way', that's where I'm going after him - and I think it's easy to do so. He didn't make a major appeal to precedent there, but logic, so if I'm able to logically differentiate between the two cases, I've shown White to be incorrect.

Now, precedent is another matter, but here's the funny thing - under your interpretation, White is making a slippery slope argument. I don't think White's willing to bite that bullet, because if slippery slope arguments are valid ('It sets a precedent that would be hard to overturn in other cases..!'), then he's handing the anti-same-sex-marriage side ammunition that was previously fought tooth and nail.

But even that doesn't touch the logical side of the argument. I've actually seen it acknowledged before that the criticism I'm making shuts down standard discrimination arguments, with the attempt made to argue that it's somehow sexist - but that's a vastly more awkward argument to make, and doesn't pass the smell test, even in the modern climate of sexist shirts.

You'd have to ask him, but I think that he'd think that it was, uh, queer for heterosexual to get gay-married.

No more queer - good line - than gay marriage itself. You can argue that two heterosexuals getting married to each other would be odd, or even only apply to some small portion of the populace. But then, gays are ~3% of the population, and a smaller subset bother with marriage, so...

I've heard of the blog, and wondered why it was called Popehat. Just haven't spent much time there.

B. Prokop said...

"[W]hy is it not okay to talk about two species of discrimination?"

Just where in the world was this so-called "discrimination"? There was none. Everyone was treated exactly the same. It mattered not whether a person was heterosexual or homosexual, everyone was permitted to marry a person of the opposite sex, and prohibited from marrying a person of the same sex. Equal treatment for all - isn't that the very definition of non-discrimination?

Is it "discrimination" that our laws prohibit a person from marrying a parent, child or sibling? According to your logic, Dan, we should be comparing such bans to racism.

Dan Gillson said...

Bob,

"Is it "discrimination" that our laws prohibit a person from marrying a parent, child or sibling? According to your logic, Dan, we should be comparing such bans to racism." ... Now that is a red herring. We are talking about anti-discrimination laws vis-à-vis Public Accommodations, not anti-discrimination laws per se.

Dan Gillson said...

On another note, while the rest of you freeze your asses off in the states, I'm going to spend the day working at my bar in the Caribbean. Ta-ta. :-P

B. Prokop said...

Have fun in the sun, Dan!

Note to all: Today is the last day I will have internet access from my home, since I have finally sold my 5-bedroom suburban house and am moving into a 1-bedroom apartment in downtown Baltimore. Although I don't actually move out for a few more days, today was the end of a Comcast billing cycle, so it was just easiest all around to end it here.

From now on, I will only have access to the internet when I walk the 100 yards or so down the street to the nearest coffee shop with wifi (I'll have about 20 establishments to choose from within a 5 minute walk). So goodbye to instant responses to others' postings! I'll probably read DI no more often that once a day.

B. Prokop said...

Damn typos! Should have read, "no more often than once a day," rather than "that".

im-skeptical said...

"everyone was permitted to marry a person of the opposite sex, and prohibited from marrying a person of the same sex. Equal treatment for all"

Sure. Same rules for all. You get to marry whoever the church deems to be a suitable partner, which just happens to the person you love only if you are heterosexual. Who said anything about discrimination?

im-skeptical said...

happens to be

im-skeptical said...

Everyone uses the appropriate entrance for their color. (Front door for whites and back door for blacks.) One rule - applies equally to everyone.

B. Prokop said...

"You get to marry whoever the church deems to be a suitable partner"

Read my opening comment on this thread. So, yes. That is precisely what I am saying. Have all the civil arrangements you want - just don't call it marriage. Save that for the churches.

B. Prokop said...

"Everyone uses the appropriate entrance for their color."

And Minnesota is north of Iowa. Just as relevant to the discussion.

Papalinton said...

I think it is pretty much a given that there are no substantive grounds, be it social, legal, physiological, etc, whatsoever, that justifiably proscribes recognition of homosexuality from being accepted as a norm of human nature and behaviour between consenting adults.

The practice of religious prejudice against and discrimination towards homosexuality in any community is no longer an acceptable or warranted social stance.

Good reason, common sense, equity and justice have already concluded and prevailed on this matter.

We need to move on.

B. Prokop said...

"Christians find [complementarity's] deepest meaning in the first Letter to the Corinthians where Saint Paul tells us that the Spirit has endowed each of us with different gifts so that - just as the human body's members work together for the good of the whole - everyone's gifts can work together for the benefit of each. (cf. 1 Cor. 12). To reflect upon "complementarity" is nothing less than to ponder the dynamic harmonies at the heart of all Creation. This is a big word, harmony. All complementarities were made by our Creator, so the Author of harmony achieves this harmony.

The complementarity of man and woman ... is a root of marriage and family. For the family grounded in marriage is the first school where we learn to appreciate our own and others' gifts, and where we begin to acquire the arts of cooperative living. For most of us, the family provides the principal place where we can aspire to greatness as we strive to realize our full capacity for virtue and charity. ... Complementarity will take many forms as each man and woman brings his or her distinctive contributions to their marriage and to the formation of their children - his or her personal richness, personal charisma. Complementarity becomes a great wealth. It is not just a good thing but it is also beautiful.

Do not fall into the trap of being swayed by political notion. Family is an anthropological fact - a socially and culturally related fact. We cannot qualify it based on ideological notions or concepts important only at one time in history. We can't think of conservative or progressive notions. Family is a family. It can't be qualified by ideological notions. Family is per se. It is a strength per se."

Pope Francis

For brevity, some content omitted. For a full transcript, see HERE.





Hal said...

Gay couples also form loving and nurturing families. I believe that is why we should give them our support.

It not only benefits them. It benefits our society.

It is immoral to do otherwise.

I know that the religious right loves to portray this as a secular attack on religion, but that is misleading.

There are many theists who agree that these unions should be recognized and supported.

Crude said...

Gay couples also form loving and nurturing families. I believe that is why we should give them our support.

Loving and nurturing, by what standard? And what support should we give to the gay couples with open relationships?

Answer carefully on that one.

It not only benefits them. It benefits our society.

By what standard?

It is immoral to do otherwise.

By what standard?

There are many theists who agree that these unions should be recognized and supported.

So? What are their arguments.

Harpia Empírica said...

I don't think the position of the government should be neutral. Has the position of the government ever been neutral on anything?

"However, there has to be a distinction between concerns about behavior, and problems caused by non-behavioral issues, such as race."

In support of the miscigenation analogy, all one has to do is an equation.

SO + R = SC + (?)

Where SO is the non behavioral issue (sexual orientation), while R is the behavioral one, "relationships". On the other side, we have "SC" which is the non behavioral issue (skin color). The = symbol means "is analogous to".

Of all the examples I could give,an options to the black person could be to either (1) cover her body so that no would see their skin or (2) show their skin like everyone else.

Suppose now our society and our popular culture have an extremely hostile opition on black-skinned people, in such a way that it requires them to hide their skin and never show it to anyone, not even other black-skinned people.

If you can call it "concerns about behavior" when it comes to the expression of one's sexual orientation while engaging in relationships, then, in the hypothetical example I gave, it should be also called "concerns about hiding or not hiding your skin".

So the equation can be complete with (?) replaced with HS (Hiding skin).
As hiding skin is related to the way a person is dressed it is far obvious that this is a behavorial issue.

In other words, a better analogy could be made and it could possibly express that discrimination against homosexuals who engage in homosexual relationships is the same as discrimination against black people who choose to show off their skin.

We have not only discovered that sexual orientation is in most times unchangeable but also that it has strong biological influence from genetics and hormones and other stuff like the brother factor found by Dr. Ray Blanchart.

"But are sexual relationships required for the pursuit of happiness?"

Sort of. It may not be required but it may turn things extremely difficult for a person with strong sexual desires (pretty much like any human on the Earth) to find any happiness.

I don't even know why these questions are being asked. I have no idea about the relationship between you and your wife, if you have one, but assuming you love each other much, could you sincerely be happy without her by your side? What about without any women on your entire life? What about the thought that even a kiss with any woman could render you eternal torture? It might be true, sure, and if Christianity is true than that raises the probability a great deal, but isn't it awful?

Let's imagine for one second that there are two gay guys who care much about each other. Let's imagine also that any stereotypes associated with gay people (if they have any reason supporting them is beyond the issue here) do not apply to those guys, i.e. they are after a monogamous and enduring relationship, they do and care about sex with caution. And, of course, that they feel the need for sex like just about anyone.

Given that, what are the odds that they will ever find happiness if they are deprived of being with each other?

Even if they can get over it with time, what are the odds that they will fall in love with other people again and have the same experience of
being negated to engage in any affectionate action with each other?

What are the odds that they will not bear that sort of solitude? That they will get to drugs and suicide?

What are the odds that this scenario can happen on reality?
If you trust my own and my bf's personal story, the odds are 1.

Harpia Empírica said...

(part 2 due to character limit)

A possible answer is that religion can fill that hole. Which may even be true, or whatever. The thought that living without these relationships is due to a better cause (not going to hell) might have some effects on those guys. The same way it might for the black person hiding her skin from everyone. But what if they're already in love? What if they've been together for 30 years or so? Wouldn't it be a painful and regretful experience for those involved?

"What if your sexual orientation is toward preteen boys. In that case, to me moral, it seems to me you would have to pass on your sex life, since there would be no moral way to have a sex life, that is, no way, without doing grievous harm to your partners."

You said it just right: "without doing grievous harm to your partners".
Forbidding paedophilia (which is also not a choice of the individual) is necessary because the child is not mature enough to even understand what a relationship is, their body is not yet suited for any type of sexual contact, and because there is certain psychological and body trauma involved, beyond many other issues.

Imagine that a person is required to hide his/her skin because they have a disease that can transmit through skin contact. Is it even fair to make it sound analogous to the example of people having to hide their skin because their skin is black?

Maybe that's not where you're getting at. I can't tell.


I also think that your concerns with evolution and homosexuality being trouble for securalists were addressed on the post you mentioned them. Even if I grant humans the purpose of reproduction it should not follow that not reproducting is wrong. Say, I grant spoons the purpose of eating ice-cream. Should it follow that eating rice with them is wrong?

That is my opinion anyway. I'm gay so it might as well be biased. I'll leave you and others to be the judge of that.