Tuesday, May 20, 2008

On the California gay marriage decision

Lots of people are talking about the decision of the Supreme Court of California to strike down a statewide ban on gay marriage. For a favorable assessment from a libertarian perspective, please check out this post from Kip Esquire's blog. For a typical, ham-fisted conservative reaction, Jeff Jacoby's op ed in the Boston Globe is illustrative.

Jacoby's piece provides three reasons for Californians to vote for a proposed constitutional amendment that would "override" the Court's decision. Here are the three reasons:

First, it's not the business of judges to make public policy.

This is the standard attack on so-called "activist judges", and, more broadly, on judicial review. But it is wrong to say that the judges in this case passed public policy. What they did was rule that an existing policy was inconsistent with California's state constitution. A constitution is, in some sense, a collection of policies, ones that are supposed to have authority over all the other policies the state passes. Rather than making policy, the court simply acknowledged the supremacy of existing policy -- the constitution itself.

"Reasonable men and women," Jacoby writes, "can disagree on whether same-sex unions should be granted legal recognition, or whether such recognition should rise to the level of marriage." But the question is whether the protections built into the California constitution already do mandate the legal recognition of same sex marriage. Perhaps reasonable people can disagree on that, too -- but that would require those reasonable people to actually engage the arguments the Court put forward.

Either restricting marriages to opposite sex partners violates the provisions of California's constitution, or it does not. The court ruled that the restriction is unconstitutional, as it is supposed to do. Contrary to Jacoby's position, the fact that the court did its job is no justification at all for voters in California to alter their constitution in the manner for which he is arguing.

Jacoby also makes the familiar claim that the same reasoning supporting the legal recognition of same sex marriages also probably supports the recognition of polygamous or incestuous unions. He might be right here. I think maybe, yeah, autonomy-based arguments for same sex marriage might also provide support at least to polygamous unions.

However, contrary Jacoby (and virtually every other conservative commentator) this fact does not represent a reductio ad absurdum of the autonomy-based arguments. We might end up accepting polygamy; on the other hand, there might be weighty reasons not to accept polygamy that weight against the value of people's autonomy. But I don't think those reasons apply to the case of same sex marriage.

Which brings us to Jacoby's third point. "Society has a vested interest in promoting only traditional marriage." As usual, society's interest in promoting heterosexual marriage has something to do with its interest in ensuring new citizens are produced. "The essential function of marriage is to unite male and female," he tells us. "That is the only kind of union that can produce new life, and therefore the only kind of union in which society has a survival stake."

For various reasons, I want to put the argument in schematic form. It goes something like this:

  1. Step 1: Society can only continue to exist if a significant number of its members reproduce. Call this the sufficient reproduction condition.
  2. Step 2: The institution of traditional, heterosexual only marriage, while not a necessary requirement of the sufficient reproduction condition, does facilitate its fulfillment. A society in which traditional marriage is practiced and widely endorsed will, other things equal, better meet the sufficient reproduction condition than it would otherwise.
  3. Step 3: So one function of traditional marriage is to ensure that the sufficient reproduction condition is met.
  4. Step 4: If marriage is not restricted to heterosexual couples, then, somehow, the institution will not be able to fulfill this function.
  5. Conclusion: thus, extending marriage to same sex couples threatens society by making it harder to meet the sufficient reproduction condition.
In a weak, nearly tautological sense, I think there's probably something to the sufficient reproduction condition. And let's throw conservatives a bone: it's probably not enough for a society to just produce a sufficient number of new people; the vast majority of those new people must be brought up under certain conditions, taught certain things, etc. if the society is to survive.

Maybe the institution of marriage is a way for society to better meet the sufficient reproduction condition. Still, the most significant flaw in the argument occurs in step 4. In order for step 4 to work, the proponent of the argument has to say something like the following: if marriage is extended to same sex unions, then heterosexuals will be less likely to marry (oh, and, for whatever reason, same sex couples will not be able to pick up their reproductive slack.)

This claim just seems obviously, incredibly false. Why would heterosexuals stop marrying each other just because gays can start marrying each other? It makes no sense.

But suppose that there is something to the claim: if gays can marry, heterosexuals will choose not to do so. So what? If the lack of heterosexual unions puts society in peril, then one would think the burden would be on heterosexuals to keep -- you know, uniting with each other. It's not like gay marriages make it impossible for heterosexuals to marry. The proper conclusion of Jacoby's argument is not what he thinks it is: instead, the right conclusion to draw is that heterosexuals have a duty, not only to marry, but to produce lots of kids.

In my next post, I plan to explain why libertarians should be fans of same sex marriage, and equal treatment under the law more generally. But that will have to wait for a while.


Jeremy Maddock said...

Those who support same-sex marriage rely strongly on rights-based arguments -- "it's my right to choose my own partner," etc. But by making such an argument, you are implicitly asserting that "marriage" is a "right."

Before anyone agrees with your position, they should ask themselves what exactly are rights, and what exactly is marriage...

A right is defined as "that which is due to a person ... by law or tradition or nature." Individual rights naturally belong to each individual, and cannot be taken away except in particular predefined circumstances (i.e. one person's right to life can be trumped by another's right to self-defense).

Marriage, meanwhile, is something which either evolved spontaneously or was bestowed upon mankind by God -- For the sake of this argument, let's say it evolved. Which begs the question: why did it evolve? What is its purpose?

From a Darwinist point of view, the likely conclusion is that early human families with both a mother and a father tended to produce healthier, more well-rounded children, who were more likely to survive and multiply. More and more human children were raised in such a situation, and the male/female family structure developed into a custom: marriage.

Over time, additional traditions and customs developed surrounding marriage. Lifelong monogamy naturally resulted in deep companionship and intimacy, as well as the sharing of property. Such things should be seen as “perks” or “the icing on the cake,” if you will. At its core, however, marriage remains an institution based on procreation and childbearing.

In my opinion, the confusion surrounding same-sex marriage stems from the “right to pursue happiness,” which most of us (libertarians in particular) would agree is a fundamental right. The ability to choose one's own life partner is obviously essential to the pursuit of happiness.

This is why same-sex couples have the same basic rights to companionship, intimacy, and the sharing of property that heterosexual couples have. In our haste to recognize these rights, however, we should not mistake the icing for the cake.

The problem with same-sex "marriage" is that it separates the concept of marriage from the core purpose of marriage, and is therefore a philosophically invalid concept. Marriage evolved (or was designed) to fulfill a specific purpose. If we ignore that reality, the core meaning and true benefits of marriage (for children and society) will be lost.

Terrence C. Watson said...


You make some interesting points. Let me try to put your argument in schematic form to make it easier to examine it.

1. The function of marriage is to produce healthy children and a few other evolutionary benefits.

2. Same-sex marriages would not produce these benefits.

Conclusion: Therefore, same-sex marriages should not be legally recognized.

I'm pretty sure there are some gaps in this line of argument. A basic point I made in my initial post is that even if we assume traditional marriage produces the benefits here described, that doesn't mean those benefits would stop being produced if same-sex marriage became legally recognized.

That's a crucial gap in your argument. There's also the issue of trying to derive moral conclusions from a purely descriptive set of premises: just because X evolved in some way doesn't imply we should (or should not) support X.

Thank you for your comments!


Jeremy Maddock said...

My argument isn't against the legal recognition of same-sex relationships as such. It's against the idea that "marriage" is necessarily a "right" above and beyond the purpose it is intended to fulfill.

Marriage has purposes other than procreation, and these additional purposes entail certain rights -- rights which should be granted to all voluntary lifelong relationships, regardless of sexual orientation or even monogamy/polygamy.

I think the basic flaw in pro-same-sex "marriage" reasoning is the claim that because a relationship shares some of the purposes and characteristics of marriage, it should necessarily be considered the same as marriage.

Marriage is a special and distinct concept because of its fundamental purpose of procreation. If we separate a concept from its defining purpose, we have eliminated the concept's true meaning.

By attempting to elevate every relationship involving companionship, sexual intimacy, and the sharing of property to the level of marriage, we are not doing those relationships any service. We are, however, saying that these things, not procreation and family, are the defining elements of marriage.

We are saying that “marriage” = any sexual friendship where all parties are happy.

I don't know about you, but I think marriage means a little more than that.

Terrence C. Watson said...


"We are saying that “marriage” = any sexual friendship where all parties are happy.

I don't know about you, but I think marriage means a little more than that."

I don't know: based on many unhappy marriages I've seen, I think it probably means a little less than that.

But marriage is a legal concept; and when the law discriminates for arbitrary reasons, that's unjust.

I'm willing to grant that there is some connection between the institution of traditional marriage and procreation, and that ongoing procreation is necessary if a society is to meet the sufficiency condition. If the legal recognition of gay marriage would put society in danger of failing to meet that condition, that might be a good reason for the law to restrict marriage to opposite-sex couples.

Come on, though: changing the law isn't going to have that result and hasn't had that result in places where the law has been changed.

Am I totally off base here?

Jeremy Maddock said...

Like I said, I support granting relevant legal rights to any voluntary lifelong relationship, regardless of the circumstances. The freedom to enter into a contract is a fundamental legal right.

I see the definition of marriage, however, as a cultural/moral argument, rather than a legal one.

Cultural traditions should never be used to limit basic rights and freedoms, but that doesn't mean that the spirit of the law can't uphold certain values and ideals, which in turn help to keep our society strong.

The fact that the institution of marriage is a part of nature, ingrained in human societies throughout history, makes it worthy of some special status and respect. The fact that some marriages fail shouldn't prevent us from striving towards a cultural ideal, any more than the fact that some businesses fail should prevent entrepreneurs from trying.

The purpose of law is to uphold natural justice, guarding our basic rights and freedoms, while recognizing the realities of nature. Only when we cease to recognize such realities does the law become truly arbitrary.