The L.A. Times editorial staff once again enters the fray on the side of same-sex marriage with a piece that is noteworthy mainly for its crusading tone that brooks no diversion from the one true path. Despite, or perhaps because of, its uncompromising fundamentalism, it manages to get a few things wrong.
First, the editorial avers that same-sex couples shouldn’t have to wait for their rights. That assumes that people “get” their rights from others. This is the modern liberal approach, in contrast to the classic liberal approach that held that rights are inherent in humans. To the extent one believes that rights are “given” to autonomous and equal human beings, they come from God. That is the text of the Declaration of Independence, which most assuredly does not say that all men are endowed by their fellow citizens with certain alienable rights. That is also the text of the Bill of Rights, which talks about “the freedom of speech” and “the right to bear arms,” language that, as the Court has held, accepts the pre-existence of those rights. They were not created by positive action of the framers of the Constitution or its amendments. The approach of the Declaration and the Constitution is today the conservative approach to rights. The modern liberal collectivist view of rights is socialistic in historical origin and rests on pure power, not ethics. If one is charitably inclined, one might describe the modern liberal approach as rights derived by the grace of the majority, another manifestation of the modern tendency of deification of the state and the collective people.
A more fundamental problem here is that no one’s “rights” have been violated. Even if one premises rights simply on voluntary choices, unconstrained by questions about the origins of such rights or their position towards other human relations within a more transcendent order, same-sex couples are free to choose. They can choose to keep their relationship quiet. They can choose to live together openly, in the absence of obsolete criminal cohabitation laws. They can choose to express their relationship sexually, in the absence of obsolete sodomy laws. Or they can choose to be celibate and express their bond solely in other ways. They can choose to get married, either within some accommodating religion or just by holding a ceremony in which they declare themselves in such a state of commitment.
The law only precludes them from having a formally and legally recognized, publicly-approved relationship, as opposite sex couples have. Same-sex marriage supporters and the rest of the enlightened right-thinking minority want to manipulate the majority, if the Times editors’ message of political scheming is to be given credit, into formally recognizing their relationships. That is not an issue of individual rights, but of power politics. Hence, the advocates hide behind the liberal redefinition of “rights,” to make their project more politically sympathetic to their unthinking targets.
If same-sex marriage proponents are successful, the state necessarily must also give formal public recognition to other relationships, friendships, say, or “living together.” Similarly, such formally-recognized relationships cannot possibly be restricted to couples, or preclude associations outside other traditional boundaries of marriage. After all, if the whole project is simply a matter of the society’s obligation to recognize whatever choices one makes in one’s personal relationships, and to equate those choices with one’s own rights, then one certainly has the right to be friends and to have those friendships formally recognized. Friendship, as many writers over the ages have described, can be a very intense personal commitment and is one manifestation of Platonic love. And it certainly won’t do for society to say that you can celebrate your commitment to your friends privately. After all, once the state chooses to recognize formally your right to one type of intimate personal commitment, it must do so for others. It involves rights, you see. Indeed, as we are often told by the courts that rights do not arise at adulthood, there must also be formal recognition, in some fashion, for personal relationships entered by minors. The whole project becomes risible.
Oh, and sex cannot be the answer, since it is not a requirement any more that there be sexual consummation of a formally recognized union. Indeed, the parties need not even cohabitate.
A way around this problem is to recognize, as classical thinkers did, that rights arise out of duties and are not simply the voluntary choices of whatever we please. As such, rights are connected to a broader order of standards. In this context that means that a right to marry arises only for those capable of possessing it in relation to the duty imposed on us to act consistent with the order that creates the institution of marriage. To that end, there is a purpose to the institution of marriage, as I have discussed in other posts, that is grounded on the individual drive for reproduction and the societal interest in the proper birth and raising of children. The drive for reproduction is accompanied by natural affection for the offspring that manifests itself in a desire to care for the offspring. That desire is evidence of the natural rightness of caring for offspring which, in turn, results in a universal recognition of a natural duty to care for the offspring. The ideal environment for raising the child being the presence of the mother and father, there is a natural duty for them to marry that becomes a universally recognized social duty due to the interest of society in well-raised offspring. Those duties in turn also create and shape the scope of the natural rights to marry and to raise the offspring, natural rights that the society not only may, but must, respect. To that end, society must allow private opposite-sex marriage. But society need not necessarily allow private same-sex marriage or other private relationships it believes to be harmful to social stability and which are not grounded on natural duties and rights. It may, but need not, give formal recognition to opposite-sex marriage, though societies universally have done so. But to give formal recognition to same-sex marriage would undermine the point of marriage and its accompanying rights and duties.
Another conceptual mis-step by the editors is to rant against discrimination. They want to end discrimination. Good luck with that project. Discrimination is choice, and for humans, unlike for irrational animals, that choice often operates on a moral plane. Humans discriminate constantly. I eat cereal instead of toast for breakfast. I drive on the right side of the road instead of the left. I opt to kill the annoying fly but not the annoying neighbor. As well, the law constantly discriminates, distinguishing among various acts as criminal or not, selecting different earners for different tax treatment, qualifying welfare recipients and federal student loan and grant recipients. Somehow, I don’t think that the editors want to eliminate “discrimination.” They would say that such discrimination is rational. It “makes sense,” unlike (in their view) discrimination against same-sex marriage.
But discrimination in public recognition of opposite-sex marriages, but not same-sex marriages, is rational. Millennia of human experience spread over vastly disparate cultures have shown that a union between male and female is not only a physical, but a social, precondition for successful propagation of the species. It produces the proper balance between the individual and the social aspects of human flourishing. To that end, then, society has an interest in regulating and formalizing that union as a public, not just a private, project. Hence, all societies traditionally have required a public ceremony of some degree to manifest the community’s interest in the male and the female’s relationship. Indeed, though variations exist, societies traditionally have confined the lawful exercise of the sexual power of individuals to such a formally recognized relationship. Prohibitions of fornication and adultery have been ubiquitous. Since same-sex couples cannot themselves produce offspring, and since, as a general experiential proposition, same-sex couples are not as suited to bring up children as are opposite-sex couples, society is well within its appropriate prerogative to decline to extend formal public recognition to same-sex marriage. Unlike discrimination against interracial unions (which can produce offspring and are fundamentally suited to raising children), this distinction is rational and thus based on proper ethical grounds.
Nor is this discrimination against homosexuals. No one is asking about the sexual proclivities of the couple that wants to marry. Aside from privacy issues and problems of proof, sexuality is a complex matter of shading. Certainly someone with some degree of sexual attraction to members of the same sex can also have attraction to members of the opposite sex, as our recognition of bisexuality attests. In fact, such a person can live a perfectly adjusted life raising a family with someone of the opposite sex, though, depending on his or her position on the sexual continuum, it may require varying degrees of discipline and control over carnal urges. While sexual attraction clearly plays a role in a great manner of human relationships (”power is the ultimate aphrodisiac”), it is not the only thing, and perhaps not the main thing that identifies any of such relationships. I admit, though, that such a concept can be difficult to understand in our society where the main definition of oneself seems to be closely identified with base sexuality, a hard-edged identification with rutting, homo- or heterosexual.
Arguments such as the assertions that not all same-sex couples are unfit to raise children, while some opposite-sex couples do a poor job, are straw men. No one denies or argues those points from the position of particular individuals. First, general rules are made on the basis of general characteristics and judgments (especially ones borne out by long experience), not on speculations about unusual cases. This applies to broad standards of ethics, as well as politics. I haven’t heard the argument that 12-year olds should be permitted to marry as they see fit (though they can get an abortion in California), just because some may well have successful marriages, while some in their 30s and 40s do not. We do not have the ability to be certain about particular individuals’ parenting success because we won’t know such things until after the child is raised. Nor, I think, would we want to try to get into predictions about particular individuals.
Second, just because some people make a hash of things doesn’t mean that therefore no system of limits should be imposed. I haven’t heard the argument that, just because the existence of criminal punishment doesn’t eliminate all crime, we should do away with formal criminal law that, after all, discriminates between criminals and others. Unless the ridiculous argument is made that all same-sex couples are better parents than the unfit opposite-sex parents, the failure of the latter is not an argument for enlarging the pool of unfit parents. Rather, it is an argument to reduce the number of unfit opposite-sex parents consistent with other societal goals, such as protection of privacy and recognition of the realities of biology.
Third, it is not an argument to say that same-sex couples can adopt or have children with the help of third parties. The former is itself a debatable and complex proposition. The latter concedes that same-sex couples cannot themselves have children, so that there is no social benefit from marriage as a limit on the proper exercise of the sexual power. Moreover, it is, again, a comparative rarity, and broad social rules are made to reflect general behavior.
Fourth, assuming that this argument in favor of same-sex marriage has merit, it obviously requires formal recognition of marriages between, say, adult siblings. After all, traditional societal concerns about family stability (or, to a much lesser extent, the physiology of offspring of such unions) would no longer be valid considerations. Siblings, too, might be perfectly respectable couples and, since not all would have children, the concern about such matters as reflected in a denial of formal recognition of their unions is improper. And surely, the L.A. Times’s editors would not be so bigoted as to paint all sibling unions or polygamous unions with a broad brush of unrespectability. Nor can a general public unease with the prospect of sibling marriage, an “ickyness factor,” be the basis for such a restriction. That same kind of unease exists for many in regards to same-sex marriage.
A similar straw man argument is that not all opposite-sex couples have children, some because of choice, others by biology. True, but, once again, most opposite sex couples have children and both the biological potential to have children and the emotional imperative to have them with each other are essential components of almost all such relationships, including those for whom biology makes this improbable. Thus, once more, the rules are made for the general proposition, not the exceptional case. But, sure, if it makes the L.A. Times editors happy, let’s eliminate formally-recognized marriage where both partners are, say, over age 65.
Yet another argument is that married couples gain various benefits that unmarried couples don’t. So what? Unmarried couples don’t receive such benefits whether they are same-sex or opposite sex, and whether they are friends, friends with, ahem, benefits, lovers, acquaintances, or any other of the various permutations of human relationships. So, as with the issue of “rights” there is no discrimination between same-sex and opposite-sex couples, but between married and unmarried people. Moreover, if the policy is bad, eliminate at least some of those advantages for married couples or extend them to all unmarried people. Eliminate the income tax, and you eliminate “married filing jointly.” Or, just eliminate “married filing jointly.”
Then there are the oft-ballyhooed matters of inheritance and property ownership, as well as hospital visits and control over care and finances of a disabled person. All of those matters can be handled by wills, contracts, powers of attorney, and other directives. True, they might require affirmative action in more particulars than what is required of married couples. But, again, if I want to leave my property to, say, a wonderful life-long friend (male or female) whom I have known longer than my wife and kids, I have to make a will. If I want that person to handle my estate if I become incompetent, I have to execute a power of attorney. Same thing for any other relationship I have with a person to whom I am not married. It is the unmarried status of these folks that causes these issues, not whether they are same-sex or opposite-sex.
All of this leads to another conclusion, namely, that formally-recognized marriage should be abolished. That is the only result not based on what some person or another would call arbitrary line-drawing. But that would involve the destruction of the institution of marriage as traditionally understood, which is exactly what opponents of same-sex marriage have been claiming would be the result of this political effort by same-sex marriage advocates. Of course, such civil unions, based purely on matters of personal choice and contract, cannot plausibly be restricted to non-polyamorous relationships or to people who are not close kin. Otherwise, we are simply replaying the issue of marriage restrictions under another name.