Equal rights for homosexual men and women is a topic I'd like to visit and revisit many times in this venue. As an introduction, and in the New Year’s spirit, I’ll ask a large question. Where are we in the struggle for equal rights for gay men and women heading into 2011?
I think this article from Mark Potok of the Southern Poverty Law Center really gets to the heart of it. There has been a mix of political achievements and setbacks but throughout the back-and-forth a tragic continuation of the long-standing violence perpetuated against and suffered by gay men and women that became highly visible this year due to the It Gets Better Project. I'm very interested in the justifications people have for opposition to same-sex marriage and homosexuality, whether it comes in the form of "respectful" disagreement or violent action.
As for achievements and setbacks - most recently, the federal Don’t Ask Don’t Tell policy was repealed, though due to the GOP’s resurgence it will probably be at least a couple of years until a new window for additional federal legislative victories opens.
At the state level, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Colombia allow same-sex marriages. New York, Rhode Island, and Maryland recognize out-of-state same-sex marriages, but do not themselves issue licenses. In Iowa, however, three of judges who overturned the ban on same-sex marriage were ousted during the November mid-term elections. In New Hampshire, Governor John Lynch narrowly won his reelection bid despite being the target of an ad campaign funded largely by out-of-state interests and in particular the National Organization for Marriage (NOM; which also funded and organized the campaign to kick out the Iowa judges). The New Hampshire legislature, however, has turned very red, and while most (though not all) Republican lawmakers say their focus is on the New Hampshire economy, there are currently four draft bills circulating that would repeal same-sex marriage and enough Republican votes to override a Lynch veto. Suffice it to say that the accomplishments on the marriage front are not safe from challenge.
An example of how a euphoric victory can quickly turn into a bitter defeat exists in the case of California’s Proposition 8, a 2008 ballot initiative that overturned a California Supreme Court decision and amended the California constitution so as to provide that only marriage between a man and a woman is valid or recognized in the state. One month ago the 9th Circuit federal appeals court began hearing the Prop8 case (this, after trial court judge Vaughn Walker ruled that Prop8 was unconstitutional). It appears that the 3 judge panel will be sympathetic to the challengers of Prop8 (see here for details), but with the remainder of this post I want to highlight part of the argument given by the lawyer defending Prop8, Charles Cooper, because it is, I think, the most widespread (and maybe only) theoretical justification for the denial of marriage equality to same-sex couples.
The argument relies on natural law theory, but because its proponents vacillate on just how much they're willing to commit to natural law and its implications, the argument ultimately becomes incoherent (whereas if they stuck to their guns and accepted some of the more unpalatable implications of applying natural law, I might still think they were wrong, but at least their argument would make sense given their starting presuppositions). In future posts I'd like to get into the nitty gritty of natural law theory and how it's being marshaled as a theoretical underpinning in the fight against marriage equality in particular and homosexuality in general, but for now I'll examine a little more closely Cooper's argument, and note a few additional instances where natural law theory is at work in similar ways.
Charles Cooper, in the December Prop8 hearing, argued that "the central and defining purpose of the institution of marriage, what it has always been, is to promote procreation and to channel narrowly procreative sexual activities between men and women into stable, enduring unions." (see here for the entire pdf of the closing arguments). The problem with Cooper's argument about the purpose of marriage is that he tries to ground it in empirical evidence that is either false, or does not corroborate his point, an issue I'll turn to shortly. Additionally, making their defense even more difficult, Cooper's claims about the purpose of marriage themselves sit uncomfortably between being empirical and metaphysical.
What do I mean by empirical and metaphysical? I’m thinking of the contrast between the two. An empirical claim is something that could be evaluated by going out into the world and investigating what’s going on out there. A metaphysical claim does not allow this same sort of investigation. "Teens living in single-parent households are more likely to struggle academically than teens living in two-parent households" is an empirical claim that relies on statistical evidence. "The Israelites are God’s chosen people," is a claim I understand as metaphysical; it cannot be investigated in the same way as an empirical claim, and cannot be demonstrated with the same level of certainty. I do not take this distinction to be hard and fast, but I think it helps explain why Cooper’s argument falls into incoherence.
Cooper proposes that the purpose of marriage is to 1) promote procreation, and 2) facilitate the creation of stable unions. Is this an empirical claim or a metaphysical claim? I think the assertion of marriage’s "purpose," makes the claim metaphysical (I’ll say why in a second), but that the talk of promoting procreation and creating stable, enduring unions is empirical. The later is empirical because we could ask, "Well, do marriages actually promote procreation and create stable unions?" My initial sense is that they do not, but the point is that we could do the research to answer the question more conclusively. Cooper himself does claim that, as a matter of fact, marriage promotes procreation, and part of his argument in the Prop8 hearing is that were marriage not a strictly heterosexual affair, heterosexuals might either stop having children, or have more children out of wedlock, which would create some sort of problem for society (of course, he does not explain of how either of these situations follow, and, in fact, at the trial court, when asked by Judge Vaughn what harm would result from same-sex marriage, Cooper answered "Your Honor, my answer is: I don't know.").
The reason I say that talk of marriage’s "purpose" is metaphysical is that I believe marriage, and this stands for many, perhaps all, objects, institutions, etc. can have multiple purposes. A baseball, for instance, certainly has the purpose of being hit by a baseball bat, and it was likely created with that purpose in mind, but the baseball can be used for other purposes: it could be used as a paperweight, it could be used as the medium on which to get an autograph, it could be used as part of a piece of artwork. The baseball could serve many purposes, so I see no way to make the case for the baseball’s real purpose, its one true purpose, its Purpose, and I see no point in privileging the "intended" purpose, provided we could even know with certainty what that was. When we make a claim about the intrinsic or essential purpose of an object or an institution, we stray into metaphysical talk, and this is the type of talk that all discussions of marriage in the gay rights context trade in, whether implicitly or explicitly.
So Cooper’s argument is an empirical/metaphysical mix because it makes a metaphysical claim about the Purpose of marriage, but couches it in language that raises empirical questions (this is actually how most of the arguments go: "Gay marriage violates the natural purpose of Marriage...And also children raised in gay households are worse off than kids from straight households!"). This leads to trouble because either a) Cooper’s and others' empirical statements are wrong (marriage doesn’t promote procreation and the creation of stable unions), or b) if the claims are correct, and if the state is in the business of doing something about it, then the state’s policies should be even more radical – perhaps making divorce illegal (and furthermore, it’s unclear how barring homosexuals from marriage affects heterosexual marriage in the ways discussed, and as Cooper admitted at trial court).
My point in this post is not to debunk all of the empirical arguments against gay marriage; that has already thoroughly been done elsewhere. And done to the point that Cooper, again at the trial court, claimed that proponents of Prop8 don't actually need to provide evidence in support of the marriage ban. My point is that what underlies Cooper's arguments is a sense that procreation is, at a very deep level, relevant to the marriage issue, but that this relevance can only be fleshed out in metaphysical terms about marital, sexual, and human teleology.
A further discussion of this teleology, its grounding in natural law, and the contemporary standing of both will have to wait for a future post. For now, suffice it to say that I think that the notion that marriage has a natural purpose and that same-sex marriage is, as a result of that purpose, a contradiction in terms, easily conjoins with the notion that homosexual sex violates natural sex, and that this later idea underwrites a lot of the moral outrage and disgust hurled at homosexual men and women. What sits behind a social-legal view of the purpose of marriage is a moral-metaphysical view of the natural/cosmic/divine order. But as I said, more on this to come.
I'll leave you with two situations where similar argumentation is taking place. One is the first installment of the Economist's debate on same-sex marriage. In the Opening Statements", Maggie Gallagher, founder of National Organization for Marriage (yes, the same NOM mentioned above). In her opposition's remarks she writes:
Marriage emerges time and again cross-culturally because it addresses a core human problem: sex between men and women makes babies. Marriage incarnates the idea that this sexual power is both deeply valuable and inherently dangerous. We need a social institution, endowed with public authority, that teaches young men and women in the midst of erotic, emotional and psychological dramas that they need to come together in love to raise the children their bodies make together. If this is a core purpose of marriage, then same-sex unions are not marriages. If gay unions are marriages, then this is no longer what marriage is about.
An initial question in response: are couples who are incapable of procreating, but who wish to get married, allowed to do so? This 'infertility problem' is central to Andrew Koppelman's arguments against Gallagher and other natural law theorists. My future discussions of natural law theory and same-sex marriage will involve a discussion of his work.
In a different, non-marriage related context, we can see a version of the natural law/teleological attitude come to light pretty explicitly in Ryan Sorba's remarks from the February, 2010 Conservative Political Action Conference (CPAC).
There's a lot of red meat in Sorba's 60 second rant, but I want to focus in on this part: "Natural rights are grounded in human nature. Human nature is a rational substance in relationship. The intelligible end of the reproductive act is reproduction" (emphasis added).
Here, as elsewhere, the focus is the procreative potential of heterosexual sex. According to those from whom we've heard, this procreative power makes marriage a specifically heterosexual affair, and makes homosexual sex an abomination. But what grounds do any of them have for thinking that procreation is the central, defining, essential aspect of either sex or marriage?