It is sad thought for Liberals like myself to note the passing of Proposition 8 in the Californian Ballot Initiative. The philosophical issues underlying gay marriage are not easy to sift out, but it certainly seems to have become a cause celebré for Liberals everywhere. I too identify myself as a Liberal, but I use the term in its traditional philosophical sense, relating to writers like John Locke, Thomas Paine, and in particular John Stuart Mill.
I regard Mill's On Liberty as a useful starting point when considering the rights and wrongs of the issue. In particular, the following of Mill's principles seem relevant:
- The government should restrict no interaction that occurs between rational consenting adults that does not cause direct harm to unwilling others.
Prima facie, it might seem that this principle would militate in favour of the government legalising gay marriage. After all, it concerns two consenting individuals, and the harm it does to "the institution of marriage" is sufficiently ill-defined and amorphous to be dismissed: it is not clear who would be harmed, or precisely how, by the recognition of same sex unions as marriage. Many of the arguments against gay marriage amount to nothing more than "Straw Man" attacks - those who would link it to adoption by gay couples, and who disapprove of such a policy, should restrict their attacks to that specific policy.
Secunda facie, however, government restriction of gay marriage is not quite like drug use, prostitution, abortion, or gun ownership. It is not the case that California will now suppress gay couples from calling each other husband or wife, or forbid them from calling their union a marriage. This is not a case of the government intervening in people's private lives. In seeking legalisation of their union, gay couples are seeking from the government a particular form of recognition, together with its legal and economic privileges. The kind of arrangement they are seeking exists because of, and not in spite of, a legal framework.
However, there are still strong Liberal arguments for legalising same-sex union. In particular, marriage comes with certain legal, civic, and economic privileges, and these privileges can only be enjoyed by mixed-sex pairings. This is illiberal, for the following reasons.
The Liberal state should be a minimal organ for maximising the welfare of every citizen. It has no paternalistic mandate, and its sole obligation is to ensure the happiest sustainable society. It can justify any legislation that it passes for this reason alone. Therefore it is illiberal to base any policy on the conviction that certain social arrangement are more ethical than others or certain citizens more deserving. Therefore the state must be blind to colour, gender, and sexuality. It should, for that matter, also be blind to other non-social and non-economic factors: it would be illiberal for the state to promote rural over urban living unless this policy were derived from a clear calculation relating to the welfare of its citizens.
Blindness towards gender includes mixed gender arrangements. It is illiberal to provide greater funding to mixed sex schools than to single sex schools, unless this can be justified by clear empirical evidence showing that one or the other is overwhelmingly in the public good. Likewise, it is illiberal to restrict certain civic and legal rights to mixed-sex unions. The only acceptable liberal justification for this would be if serious and direct harm were caused by such unions to either the individuals concerned or those around them. Needless to say, this is not the case for gay marriage. Thus there is an argument to say that, even if every one in our society were as a matter of fact heterosexual, there would be no justification for legally limiting marriage to heterosexuals, even if no-one would actually benefit from it as a policy.
As it is, however, a large group of citizens would directly benefit from that policy. There would also be many less direct welfare gains. In particular, the individuals who would benefit are those who have historically had their rights illiberally restricted by the state, and who still face discrimination in many areas of life. Therefore it would have the side benefit of reducing the sense of alienation from society among many individuals, so its benefits to welfare would be amplified.
This is a clear argument for civil unions, that is, extending the same legal and economic rights to gay couples that are enjoyed by straight couples. A more difficult question is whether this union should have the name of marriage. The state's duty to be blind to gender applies properly only to substantive policy. It is not clear that it should apply to nomenclature. For example, imagine a state that required female inheritors in legal documents to be referred to as heiresses and male inheritors as heirs. This would not be in any sense illiberal. Some people would certainly feel unhappy about a nomenclature that differentiated between men and women, but without any substantive policy underlying the difference, this unhappiness would be purely ideological. And it is by no means clear that the liberal state should make decisions based on ideology. Surely, rejection of a state ideology is part of what it is to be a non-paternalistic state?
How, then, would the state settle a linguistic issue, behind which there lurked no substantive question of policy? Presumably by recourse to welfare. If it were felt that the heir/heiress distinction in naming caused a net loss to welfare for whatever reason, then the state would have an obligation to abandon it; conversely, if it caused a net gain to welfare, to retain it. Therefore, the state must judge whether the unhappiness and alienation that would follow from calling gay unions "civil unions" rather than marriages would outweigh the unhappiness and alienation caused by calling all unions "marriages." It is my suspicion that it would, but this seems a useful area of empirical research; and it would seem that the dilemma comes down solely to a matter of empirical fact rather than any normative issue.
I would like to make one further suggestion (for which I have Sarah to thank). First off, anyone should be able to claim their union, be it a heterosexual or homosexual one, as a civil union rather than as a marriage, if the former term is felt to have less religious significance: I pity any strongly atheist couples who are forced to live out their union under a despised theist title. Second, if the term marriage does have deep religious significance, then what the hell is the state doing handing it out left, right, and centre, without giving any thought to the particular confessional issues at stake? Should couples in Las Vegas casinos who get married for 24 hours for a bit of fun and then immediately divorce be religiously endorsed by the state?
If there is anything religious about the term marriage, the state either should have no role in bestowing it, or should bestow it responsibly, where "responsibly" means in accordance with a particular set of religious principles. As a religiously neutral institution, it has no business doing the latter - that is the job of particular churches - so we are left with the former as our only option. The state should recognise no "marriages" - only civil unions. It should be down to particular faiths to endorse individual unions as meeting their requirements for the title of marriage, but this should be none of the state's concern. Thus I may proudly boast that my union is recognised as a Roman Catholic marriage; you may boast that yours is recognised as a Jewish marriage. Leave the state out of it.
(On a final note, it is interesting that, etymologically speaking, there is nothing religious about the word "marriage" or "marry", as a quick glance at the online etymology dictionary will show you. It means nothing more than provided with a young man or woman: http://www.etymonline.com/index.php?term=marry )
2 comments:
Has marriage been devalued in the US by the 'Las Vegas' effect? Yes.
Would it be better, and in the USA's case more constitutional, if the state only recognized civil unions and marriages were left to the churches? Yes.
Both these points are credible and well made; but they are ivory tower. The fact is that the institution of marriage, though it has been devalued and become an uncomfortable blend of state and church, is a massively significant institution to western society, especially the US.
Marriage is the foundation of Family (of course family has a wider definition than this, but the narrow interpretation of the word is not only relevant, but in the US preferred – think League for Family Values). The Family is the basic unit of our society, it is a measure of the success, or failure, of people as much, if not more, than a career can be. We find it (as we should) entirely acceptable, and even noble, that someone should give up work to look after their family (where as some one who merely gives up work is parasitic).
The Family is the basic unit; it is where we exist. The sate regulates interactions, provides health care, education, food, and warmth; the family provides us with identity. To prevent Homosexuals from marrying is to limit them in terms of Family, and so limit them in terms of identity. We can see this, the word Gay carries far more connotations than the word Straight; one is the exception, the other the norm. The point here is not if people get married or not, but if they are able to get married.
To not allow Homosexual marriage is to single them out is to say; "you cannot be fully part of what it is to be a normal American". It is the 'normal' saying to the 'odd' ('queer', 'bent', etc...); "You will always be outside of that roped off area where true America sleeps."
The trend in America to try and ban, or put blocks on, homosexual marriage is legislative gay bashing. It is about marking out society. It is about being exclusive. It is just another type of segregation.
It is wrong, plain and simple.
When anybody starts a point of view by referring to Mill’s ‘On Liberty’, what follows will almost certainly be a coherent and well constructed argument. Once again my rule proves to be correct; this is a balanced and informative article. One aspect that I do approve of in relation to Proposition 8 is its succinctness and clarity. Proposition 8 was simple, short and to the point. It simply appended the following to the California State constitution; "Only marriage between a man and a woman is valid or recognized in California." This is democracy as it should be; succinct, accessible and transparent (Brussels take note). However this argument is over semantics. It is about a single word. The difficulty in my mind is that marriage is both a religious concept and a civil concept and the problem is that they both use the same word. Unless we can develop a separate and distinct word for each, then we are stuck with this ambiguity. I could argue that 50 percent of marriages end in divorce and how can we say the term has any (religious) sacredness in the first place. But I won’t. Instead I wish to highlight the insignificance of this case in the global context of ‘gay rights’ and universal equality. The ‘yes’ and ‘no’ campaigns over Proposition 8 raised over $70,000,000 between them (fairly evenly split incidentally), the media coverage has been extensive and I have no doubt that we will see numerous legal challenges (and a good chance of a policy reversal). But let’s put this into perspective. Whilst Californians pontificate about a word, a gay ‘marriage’ or ‘civil union’ in Saudi Arabia, Iran, Chechnya, Pakistan or Nigeria would probably result in execution. Iran, Saudi Arabia and Afghanistan have all actually carried these out. Almost universally the Western media remain silent. That is the real outrage.
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