1st November 2008

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Blog :: A Humanist Case for Prop 8

It's been interesting to me as I've followed the conversation around Prop 8 to note the assumptions of people both pro and con.

Both sides seem to assume that only religious reasons could cause one to oppose gay marriage. (Many aren't that generous - only bigotry and animus, they insist, could inspire one to oppose extending equal civil rights to all.) News coverage has seemed to follow in this vein. My local paper, The Modesto Bee, has repeatedly explored the religious pro and con Prop 8 positions and it's most prominent article on Prop 8 (if I recall correctly) was this pair or articles (pro and con) that interviewed local supporters and opponents of Prop 8. Almost all the comments focused on religious justifications for the position espoused and four of the locals interviewed were religious officials of some kind.

I'm not actually all that interested in the religious arguments against gay marriage. While I certainly have my opinions and am comfortable basing my own decisions on my theological preconceptions I don't expect my fellow citizens who do not share my religious beliefs to be particularly impressed by religious arguments. In fact I'd say that it is imperative for Christians who want to make an argument against gay marriage to make it in other than theological terms.

To be clear - this isn't because I think religion or religious arguments should be banned from the public square. Far from it! I just think if Christians can make no other arguments than religious ones (and not all Christians can agree on the religious arguments) than they are unlikely to have much impact on public discourse.

So I've been thinking about Prop 8 from a humanist perspective. Humanism is has a wide range of meanings - from a specific reference to the neo-classical revival of the renaissance era (I'm working through a bio of Erasmus right now) to modern day humanism which frequently has an explicit reason-against-religion flavor to it - but I have in mind here the humanist ideals of rationality and appeals to "universal" ethics as embodied in the traditions of western civilization.

So Prop 8 would define marriage as a legal institution available only to opposite gendered partners, overturning the recent court decision that opened marriage to same gendered partners. Why might I want to support or oppose this idea? What might its benefits and harms be?

I suppose I should start with me personally. As an individual Prop 8 neither helps nor harms me personally. I am already married and not by nature attracted to same gender partners so I have no benefit from Prop 8. Conversely it does not do me harm if some other persons of the same gender are legally married. On a purely personal basis than I understand why some might have passionate reason to support Prop 8 but most citizens do not have a personal investment one way or another.

If personal benefit fails to motivate me in one way or another, what about appeals to universal ethics - to fairness, equality, and justice? Many opponents of Prop 8 have made comparisons to the struggles of the Civil Rights era. And this is a telling stroke - after all if I were asked to vote on a proposition in inter-racial marriage 60 years ago I hope that issues of equality and justice would motivate me to respond, without reference to personal benefit or cost. Much indeed has been made of this correspondence by some civil rights organizations (I incidentally receive regular mail from African-American political institutions like the NAACP addressing me as a minority - my name and mailing address apparently label me as a minority. Have I been the victim of racial profiling?)

This is not ultimately a persuasive analogy to me. Blacks before the civil rights movement were legally discriminated against in a variety of ways. Interracial marriage as an issue was pretty far down the list of concerns - certainly below voting, equality before civil and criminal law, and discrimination in housing and facilities. This is not to say that a ban on interracial marriages couldn't be opposed by humanist ethics, it is merely to note that it was one issue in a sea of injustice.

Gays, by contrast, are not markedly legally discriminated against in our society (extra-legal "gay-bashing" is regrettable and I'll consider it separately). In fact marriage is precisely the issue at hand because most legal forms of discrimination are related to the privileged position marriage has in our legal system and (more significantly I think) the role marriage plays as a signifier of respectability in our society. In fact, far from being analogous to the civil rights movement with widespread legal discrimination, obvious harms, and visible injustice, the argument for same-sex marriage seems to me to boil down to three considerations. First: the argument to equality - frequently phrased as "all people should have the right to marry who they love". Second: the automatic legal access to certain rights and privileges married partners may enjoy - filing taxes jointly, bereavement and sick leave to care for a partner, child custody, inheritance, etc. Thirdly (and this is least often explicitly stated but is in my estimation the most significant argument to both sides): the implicit approval of society enshrined into law.

The first argument is not as persuasive as some advocates apparently imagine it to be. Marriage choices in our society are and have been restricted in a great many ways. Historically by the difficulty of divorce (not a great barrier now I admit) and of course prohibitions against marriage by close family members still apply. Western society has also traditionally viewed marriage as a a two person contract - someone who loves more generously is quite out of luck in our society - as anyone in a polygamous marriage abroad who wished to immigrate here finds out. So the first appeal does not automatically sway my opinion.

That doesn't mean it can be dismissed entirely - after all it does harm to those individuals who wish to enter into such arrangements to be denied them. Unless there are counterbalancing harms this seems like a point in favor of allowing same sex marriage.

The second argument is essentially an argument to utility. Couples of the same gender are in relationships and certainly it seems unjust to deny them access to benefits to others in similar relationships enjoy. This is a stronger case to me: I agree that any two persons who have agreed to raise children together should be able to establish joint custody together, that the rights of companions in a long term relationship to visitation in a hospital should not be less than that of other family... And marriage is certainly one way to achieve these goals as it is a recognized structure in our laws that automatically confers many such rights.

In California, however, there are already alternative means under which most of these rights may be sought. California has "registered domestic partnerships" that for purposes of state law, at least, is equivalent to marriage. This doesn't cover everything (eg: see this explanation at the ca.gov tax site about filing jointly at a state level versus federal level). This significantly weakens the harms claimed by advocates of gay marriage.

This leaves us with the implicit third argument - that society ought to bestow its mark or respectability and approval upon same sex marriages. This, I believe, is where the real passion of both those who support and oppose gay marriage resides. It is also the place where the opponents of gay marriage claim harms at a societal level. This claim is mostly left implicit in the public arguments of gay marriages because it is the weakest in terms of universal ethics. It's appeal is not - give me under law what is fairly mine in equality with everyone else (which strikes the ear as inherently just and reasonable) but rather the negative "stop disapproving of me" which sounds rather less majestic.

The only sensible argument I can see for this position is again the analogy to the civil rights movement. Racial attitudes on the part of white America changed drastically as black America attained legal equality - at least some of this must be cause and effect, and so gay advocates hope, I suspect, for a diminishment in societal disapprobation following legal equality. Any existence of "gay-bashing" - non-legal opposition to homosexuality expressed in violent terms seems to me to be an argument in favor of this position. If society expressing it's approval in a legal or political way of homosexuality diminishes violence that might otherwise occur than this seems a point in favor of bestowing such approval.

I'm not convinced that the cause-and-effect mechanism is actually that powerful, nor is the oppression that exists as virulent (this seems to me to be part of the fatal flaw in the appeal to the civil rights analogy - that homosexuals already have many protections and accommodations (eg registered domestic partnerships) and do not suffer widespread and obvious impactful discrimination.) More compellingly, however, it is at this point that the opponents of gay marriage (and hence the supporters of Prop 8.) assert their harms.

First is the argument that "redefining" marriage harms marriage as an institution. It is amazing, in some ways, how resilient marriage is in western society - despite losing for the vast majority of people its religious implications and even despite losing its moral implications (it is assumed now that sex and marriage are separate) marriage still has an enduring appeal. People still get married and society as a whole still makes a big deal out of weddings. (And viewed in that context it is extremely understandable to me that same sex partners want that affirmation.) Some argue, however, that expanding the traditional definition of marriage which is tied to the opposite gender of its participants and thus tied to the concept of the biological family will weaken the institution, diminishing its cultural luster. See this article by Stanley Kurtz in which he examines the marriage statistics in Scandinavia post gay-marriage for an example of this sort of argument. I have a limited amount of sympathy to this sort of argument: I think it probable but not conclusive that some harm is done to marriage as a cultural institution by changing the traditional definition of marriage.

As a conservative-leaning libertarian I am sympathetic to those wishing to preserve cultural institutions from change. If the harms derived from preventing gay marriage were greater I would be forced to override my sympathies - but I am satisfied enough that most of the material harms can or have been remedied by other means that on this point alone I would probably recommend at least delaying any move towards gay marriage. Marriage as it exists is a cultural institution which has had the same fundamental basis throughout the history of western civilization. Many western cultures have had tacit (or even open: see erastes-eromenos practices in ancient Greece) acceptance of same-sex relationships but no western culture has seen them as a replacement for marriage. In the US in particular society has moved quite a distance from disapproval to tolerance - and I am content to stop there.

It is the other more concrete harm alleged by Prop 8 backers, however, that really seals the deal for me.

The desire for approbation, it seems to me, can quickly evolve into a need to mandate approbation, and it is this imposition of values that bothers me most about the drive towards gay marriage. I think the opponents of gay marriage make the case conclusively that societies' support of gay marriage will come inevitably into conflict with those who oppose gay marriage on religious grounds.

Note carefully - this is not about theology - this is about the first amendment to the constitution. "Whether you like it or not" - mandating societal acceptance of gay marriage will harm religiously observant wedding photographers (as it already has in New Mexico, see Volokh's series on this), will force Churches to stop offering services which may be construed as a public utility (hosting weddings (the Methodist facility in NJ), offering adoption services (as in Catholic Charities in Massachusetts)), or even (as in Canada) impose various limits on speech construed as hateful since it opposes what society chooses to condone. And of course we could touch on the question of how government funded schools teach children about marriage when their parents find the views inimical to their religious beliefs. Given current trends I am not optimistic; government schools are not notorious for their delicacy in such situations.

It would be ironic if a drive with aims of tolerance ended in harming the balance necessary for co-existence in a pluralistic society. I am concerned enough by dangers to the first amendment, both to my right of free speech and my right to freely practice my religion that I ask others, including those in a same-sex partnership, not to push for the change in marriage. Have a wedding and register as domestic partners by all means. But I suspect, from your perspective, that this is a case where the pursuit of the perfect will be the enemy of the good. I hope that everyone in America can be left to pursue their separate happiness; I worry that someday I'll be forced to quote one of the original humanists...

I do nobody no harm, I say none harm, I think none harm, but wish everybody good. And if this be not enough to keep a man alive, in good faith I long not to live.

Sir Thomas More, in a letter to his daughter before his execution for refusing to publicly proclaim his support for King Henry's second marriage.

Posted on November 1st 2008, 08:42 PM

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