Thinking to Believe

I was reading the San Francisco Examiner the other day, when I ran across a “Viewpoints” article by Wayne State University professor of philosophy, John Corvino (the November 10^th edition, page 13).  Mr. Covino was opining on the passage of Proposition 8, a proposition in California that amended the state’s constitution to define marriage as being between a man and woman only (and overturning the state Supreme Court’s recent decision to extend the institution of marriage to same-sex couples).  

In essence, his viewpoint was that this was only a temporary setback.  The tide is on the side of those who favor same-sex marriage, and they will ride that tide in due time.  I hate to admit it, but he is probably right.  Prop 8 passed by a mere 2%.  That’s hardly a safe margin of victory.  What’s worse, popular support for traditional marriage dropped 10% from 2000, when California voters passed a similar proposition (it passed by 62%).  Given the fact that opposition to same-sex marriage is fading by an average of 1.25% each year, and given the fact that those who oppose same-sex marriage tend to be older and more religious, there is good reason to believe same-sex marriage would be approved by the electorate if put to a vote four years from now.  Why?  Older people die at higher rates than younger people, so the anti-same-sex marriage voting block will lose supporters at a faster rate than the pro-same-sex marriage voting block, even if no one in either camp changes their position in the future.  Furthermore, religious conviction is a major reason people oppose same-sex marriage.  Given the fact that religion plays a less significant role in the political views of younger Americans, and it is the largely the young who become new voters, it is unlikely that those who age-in to the social debate will object to same-sex marriage.  Only a major public education campaign and/or religious revival can stop the eventual legalization of same-sex marriage in the United States.  

Given the length of the above paragraph, one might think my purpose in writing this post was to evaluate the future of marriage in California.  It’s not.  What I found particularly interesting about Corvino’s article was the following statement: 

A bare majority of California voters sent a discriminatory message: You are not good enough for marriage.  Your relationships-no matter how loving, how committed, how exemplary-are not “real” marriage.  But “real” marriage transcends state recognition of it.  And that’s another reason why this debate will continue.  Because it’s not just about what California should or should not legally recognize.  It’s also about what sort of relationships are morally valuable, and why.  And that’s a debate that, slowly but surely, gay-rights advocates are winning.

Corvino’s claim could not be more clear: same-sex marriage is a right that transcends human law.  This is quite a claim.  Rights have to be grounded in something.  Rights come in two forms: those belonging to us by nature, and those given to us by those in power.  The right to drive is an example of the latter, while the right to life is an example of the former.  To say homosexuals have the right to marry someone of the same gender, even if the political powers that be do not wish to extend them that right is to say the right to same-sex marriage is a natural right that transcends human law, and to which human law has an obligation to conform (i.e. if human law denies homosexuals the right to marry, a moral injustice is being done).  But from whence cometh this right?  What is it grounded in?

It cannot be a natural right, like the right to life, the right to procreate, or the right to believe what one chooses to believe.  Why?  Because marriage is not a fundamental right.  Civil marriage is just society’s way of managing procreation for the good of, and in the interest of society.  But society is under no moral obligation to formally recognize and regulate anybody’s relationships.  They do so only in their own self-interest.  In fact, if they got out of the marriage business tomorrow, people would continue to fall in love, make relational commitments to one another, and continue to have children just as before.  Nothing would stop them from doing so.  If marriage itself is not a fundamental right, then by no means can one argue that same-sex marriage in particular is a fundamental right.

The only other source in which to ground a transcendent right is God.  The problem with this is that no major religion claims God approves of homosex, yet alone same-sex marriage.  It’s kind of hard to ground the right to same-sex marriage in God, when God doesn’t recognize the right! 

If same-sex marriage is not a right that can be grounded in God or nature, then it is not a transcendent right.  It is a legal right, and a legal right depends entirely on the will of the people to grant it.

While leaving work today I was handed a “No on Prop 8” leaflet.  For those of you not living in CA, prop 8 seeks to undo our state Supreme Court’s recent decision to remove gender requirements from the institution of marriage.  In CA, same-sex couples in a domestic partnership already had identical rights and obligations as their married counterparts.  Their “package” was simply being called by a different name (domestic partnership vs. marriage).  In effect, the Supreme Court simply demanded that they be given a name change.  And they have been, against the express will of the people.  In response, the people of CA organized a ballot initiative to amend our state constitution to define marriage as being between one man and one woman only.  The people handing out the leaflet I received today oppose this initiative.

As I expected, the leaflet was a propaganda piece full of half-truths and sophistry.  Rather than reproducing this piece, I’ll just refer you to the picture above.  To read the text just click the picture (it will magnify it).  I would like to bring some of the most blatant rhetoric to your attention.  There are five paragraphs, but I will only respond to the first four:

#1 They claim same-sex marriage is a fundamental right, but since when?  It has not been recognized by any society in history until a decade ago.  A right no one recognized until 10 years ago can hardly be considered fundamental.  Just because a handful of people in black robes declare it to be a fundamental right by judicial fiat, does not make it one in reality.

As for equality, I agree.  But the law already afforded equality to all Californians.  Everyone had an equal right to marry a non-relative of the opposite sex.  The law did not stipulate that homosexuals could not marry.  Homosexuals are just as free to take advantage of the institution of marriage as are heterosexuals, but if they wish to avail themselves of this right, they need to marry someone of the opposite sex.  The fact that they choose not to afford themselves of this right is not grounds for radically changing the historic understanding of marriage.

#2 Yes, same-sex couples are our neighbors, but what follows from that?  People in Utah have polygamists as their neighbors, but does that mean society must redefine the number of participants in a marriage?  No, so why should the fact that we have gay neighbors cause us to redefine the gender requirements of civil marriage?

They claim that same-sex couples are hurt by not giving their legally-recognized unions the name “marriage,” but how?  Because they are not accorded the same social approval?  First, we do not alter fundamental social institutions so that some people won’t feel bad.  Second, marriage is a social institution intended to provide social support to relationships society deems important to the success of society.  People in society are free to choose whom to give their support to and whom to deny it.  And many do not wish to extend it to same-sex couples because they do not think their relationships are beneficial to the social fabric (indeed, they may be detrimental).

#3 No, “it’s not the government’s place to tell couples who have been together for years whether or not to marry,” but that is not the issue.  This sentence was either framed poorly, or strategically, because the government isn’t telling anyone-heterosexual or homosexual-whether or not to marry.  It only tells them the requirements they must meet if they wish to marry.  But if they were to have worded it this way, it is clearly wrong.  The government represents the people, and the people of this country have the right to define the requirements for marriage; i.e. which relationships they will and will not extend their social approval and support to.  That’s not to say they can be arbitrary in their definition, but clearly that is not the case in this country.  There are principled reasons we define marriage the way we do, and those reasons make no room for same-sex couples.

They claim we let people decide what’s best for themselves in CA.  No, we don’t.  I decided it’s best for me to be able to talk on my cell phone in my car, but the government decided it wasn’t.  Taken at face-value, what they are advocating is anarchy.  And I find it ironic that the pro-Prop 8 prop are speaking negatively of “government interference” when they have been working ferociously over the last 20 years to intimately involve government in this issue.  If they truly eschewed government interference, they would not be asking for the state of CA to recognize and regulate their relationships.

#4 In one sense it’s true that domestic partnerships are not the same as marriage.  But where do they differ?  You might be surprised to know that in CA they are the same in all but the name.  Domestic partnerships afford same-sex couples all the same rights and responsibilities as marriage.  That’s why it is disingenuous on their part to bring up the issue of medical power-of-attorney.  Domestic partnerships already give same-sex couples such rights.  The only thing domestic partnerships do not afford same-sex couples is “the same dignity” and “respect.”  But why ought they be given such when their relationships do not function in the same way in society, and when many people consider their sexual mores immoral?  I see no reason to.

I hope my fellow Californians will join me in voting YES on prop 8.

It’s official.  Connecticut is now the third state in the nation to legalize same-sex marriage.  Just as Massachusetts and California, this was the result of a ruling by the state Supreme Court, not an expression of the will of the people.  It’s amazing how these courts keep discovering rights in their constitutions that hundreds of justices had not seen before!  I’m sure this will not be the last court to do so.  This seems to be a trend, and I see no end in sight.

According to the AP, the civil union law CT passed in 2005 essentially granted same-sex couples all the rights and benefits available to heterosexual married couples, so as I noted in my comments on the CA case in which same-sex marriage was legalized, it only makes sense to extend the name “marriage” to the package of benefits already conceded.  We are finding ourselves in the bed of our own making.  Did we honestly think we can give legal recognition and benefits to same-sex couples, and yet deny them the name by which we identify that packet of benefits?

Speaking of same-sex marriage, in a 4-3 decision the CA Supreme Court has declared that same-sex couples have the right to have their legally recognized relationships called “marriage.” We are only the second state in the nation to do so (MA was the first back in 2004).

The headlines and news articles are saying the Court approved same-sex marriage, but that is not true. What they did was all that was left for them to do: to give the name “marriage” to those who are already married in the practical sense of the word. Domestic partnerships in CA were already identical to marriage in every respect, but without the name. While on a practical level, then, this ruling doesn’t mean much, it is huge in terms of political and social significance. While not much more than a name (marriage) separated domestic partnerships from marriage in CA, there is a lot in a name! Now that same-sex couples have the benefits as well as the name “marriage,” they have made a huge step forward in achieving social approval. Furthermore, as goes CA, so goes the nation.

I have not read the opinion of the court (it hasn’t been released yet to my knowledge), but the news article reported this little excerpt from the majority opinion (penned by Chief Justice Ronald George: “In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation.” Say what? Nothing in the wording of the constitution has changed in regards to this issue, so what does earlier versus later times have to do with anything? Oh, I forgot. These judges don’t think it’s their job to interpret the Constitution. They think it is their job to institute progressive public policy when the public is apparently too stupid to do so. Infuriating!