Sunday, January 19, 2014

Same-Sex Marriage: "Legal Reform" or Progressive Overreaching

This is the fourth installment in an ongoing debate/dialogue about the viability of gay marriage in America. The previous installments can be linked from here. This page can also be read on its own. The opening letter is Steve Johnson's response to my previous post: "Against Same-Sex Marriage: Am I a bigot?"

I choose to open with Steve's letter here because I find it representative of the way many Americans approach the issue. My own arguments follow. I am a Catholic, politically on the left, who is strongly opposed to same-sex marriage.

Eric Mader

Same-Sex Marriage: A Simple Question of Fairness


First off, no, you are not a bigot. There is a difference between what I consider a bigot to be, and your point of view. I believe your point of view is one developed in earnest, without the disposition of disgust, hatred, or vitriolic anger. You have an opinion, and that opinion is not one that is derived from a "distaste" or desire to deny "rights" to others. Therefore, in my view, you are not a bigot.

However, what I would like to share with you is how I believe your point of view is ideally suited to be the firmament for bigotry wherein the true bigots can "co-opt" aspects of your views for their own purposes.

Part of your argument rests on the notion that history has not seen fit to create the equal status of same-sex marriage to a heterosexual marriage, and likewise with marriages between siblings, a child and their parent, etc., etc. For me this argument is weak. It is weak for the simple fact that on balance, history as a guide in terms of social aspects of humanity has been seriously flawed, for it has drawn its reasoning from all sorts of "truths" of the time that were utterly bereft of any actual reasons stemming from anything factual: its logic has often been merely based on prior social considerations. I don't believe I need to make the case for what I am saying beyond stating that slavery, property ownership of females, etc., were all part and parcel of a series of historical views that were derived from ideologies designed specifically to support all sorts of notions, none of which was to the benefit of the "owned" humans, though it was sold culturally as either a "natural order", or a best fit for the realities of the time. So historically, I think culture itself has always been lagging behind the real nature of what is fair, or just, or right for all humans.

The movement to provide rights of marriage to same-sex couples is far less troubling to me than it is to many people. For me the issue is cut-and-dried; it is as boring a decision as many of the other legal decisions we face in our country yearly.

It will bore you for me to state it, but I will state it nonetheless.

Marriage is a legal construct, a legal contract recognized by the state. It is no different than a "credit card terms" agreement, or a fishing license or drivers license. There are criteria that need to be met to sign such agreements, and upon signing those agreements, the benefits and risks of that agreement then inure to the signatories.

It is often stated that once this view is adopted, it is simple enough to provide a legal framework for such contracts that do not require it to be called "marriage"; another term may be chosen with all the same "legal" aspects of a "marriage" contract. It is typically called a "civil union", and you are not blocking such things, therefore, you are not, by definition, a bigot.

However, I would ask you the question: Why set up a completely different framework if ALL the legal benefits of the contracts are identical? What is it about the term "marriage" that needs to have it set as a different standard? When separate but equal would actually work as it pertains to legal frameworks? The answer is simple.

There is no reason to set up a separate legal framework that is identical, just to maintain the sanctity, or differentiation, of the term "marriage" unless there is some specific quality of that term that is conveyed, that cannot or should not be conveyed to same-sex couples.

Additionally, although your argument regarding the purpose of marriage was and has always been that it provides a legal framework for procreation, and the rights and privileges of that process, I would argue, that in our current social system, procreation is not the only reason people get married. As a matter of fact, although that may have been the intent of such a legal framework in the past, the reasons why people get married are actually irrelevant. Old people get married when they can no longer procreate. And procreation itself as reason for marriage today is really, fundamentally, obsolete. So we cannot assign any specific reason for WHY people get married, and from a legal framework perspective, it is also irrelevant. Especially since the criteria and reasoning for any given marriage has no bearing on what benefits are conveyed legally.

So it comes down to a specific word. The word is marriage. And history has shown that it is the word that disturbs most. It is no longer even the meaning assigned to the word. Since by every legal measure, a civil union is identical. Which leads me to ask the deeper question: What is it specifically that the voices for "civil union" instead of "marriage" object to? Especially when those who are OK with civil unions are totally OK with every right and benefit legally being conveyed in equal measure to a marriage.

And I would suggest that it is something deeper. It is that there is a belief (one that I do not share) that a marriage derives some element from some "higher place", some thing that cannot be conveyed legally, that is "sacred" between two opposite sex persons.

And whatever it is that this feeling is, it is nothing more than that. A feeling. A sense of "it's different" between same-sex people than it is between heterosexuals. And perhaps it is. But, there is nothing that can be studied, no academic research, no real world explanation for this "feeling". It is, in the end, an opinion that is not verified empirically. It just is. And this is insufficient to create a separate legal class with all the benefits being identical. Especially given that the notion of marriage itself derives its standing from a religious notion, a notion that the state co-opted to provide a contractual framework for two humans to have "rights" that inured to one another by virtue of that contract.

What same-sex individuals want, and they should have it, is the same "standing" in the law and CULTURALLY that the word "marriage" conveys. It is just that simple. And since there is no actual intellectual argument to be made for this "standing", since it is built on things we think but do not say, or even fully comprehend, it is nearly impossible in my view to rationally argue a separate but equal status for same-sex marriage except: "I don't like it."

Now, I would also be open for all marriages to be renamed "civil unions" and leave the term "marriage" to churches and religions. But since the culture itself wouldn't allow for this, then the only fair thing to do, if you are already willing to provide a full legal framework in every regard to same-sex couples, is simply concede the word, and move on.

Unless you believe there is something different, and that difference comes from something outside the law or any legal framework. And if that is the case, then although it is well articulated, it merely amounts to a confession that marriage itself is something other than a legal framework, something that comes from a deity, or a religious order. And if that is case, then in fact, we do stand opposite as, although I believe in a larger deity, I have seen not a single religion or man-made organization that even attempts to convey the reality of such a deity. Moreover, until a deity actually shows up and in person proves its godhead in the real, on TV and in the world, it is up to humans themselves to find the truth and to act on what is fair and right. And it is fair, and it is right, that any two consenting adults who are willing to enter into a legal framework for their benefit may be able to do so.

That is, until the so-called god shows up and spells out the reasons for why it is wrong.



Same-Sex Marriage: Cultural Considerations


I much appreciate your arguments here. It's clear your position hasn't changed that much since you last wrote about it in 2012--even then you evoked "fishing licenses"! Since you're taking much the same tack, I might simply refer you back to my arguments from that debate, when you finally acknowledged you had been "changed" by what I had to say, and that you would have more empathy with the views of "socially conservative" people henceforth. But just repeating my arguments won't do, because, although you're defending much the same position, you've clearly, in the meantime, sharpened the implications of your position. I think here you've brought things to a very sharp intellectual point.

In responding I'm going to try to be brief. If experience is any guide, I'm likely going to fail at this. The issue is a complex one, and there are aspects of it, depths to which it reaches in our culture, that require some fathoming even to make a valid point.

This time you start by declaring marriage a kind of "legal contract" and move toward questioning the grounds on which one can then distinguish between same-sex relationships and male-female relationships. You argue that there are no legal grounds for such a distinction; that those who claim otherwise can only be basing their claim on a "feeling", or on an appeal to some "higher place"--in short, that the claim cannot be based on observable "facts".

Here's the lynchpin for most of what you argue:

Marriage is a legal construct, a legal contract recognized by the state. It is no different than a "credit card terms" agreement, or a fishing license or drivers license. There are criteria that need to be met to sign such agreements, and upon signing those agreements, the benefits and risks of that agreement then inure to the signatories.

In fact my main problem with your whole way of thinking stems from my disagreement with your founding definition of marriage. I do not accept that marriage is fundamentally a "legal contract recognized by the state". I won't go into this in detail here because I've already explained myself on this point in our last discussion. Suffice it to say: Marriage is prior to the state. Marriage existed long before the state did. Marriage licenses are a secondary phenomenon. Such licenses are provided by the state merely to record the fact that the people in question are married.

When we discuss a change marriage customs or discuss what constitutes a marriage, we should always bear these things in mind. Marriage law as codified in the United States, or indeed in ancient Egypt or China, did not even exist when marriage began to be practiced as a human institution. In fact, writing did not even exist.

Now I know there are many people in contemporary America who are not impressed with ancient credentials: they do not assume things are better or true or right because they are ancient. In fact, for many people, ancient things are less likely to be true or right than contemporary things. But I want you to consider the kind of leap you are making when you say that marriage is merely a legal contract.

In America each state also issues birth certificates. We may then begin to argue that the birth of a human being is merely a kind of "license" issued by the state, no? That the main point about any human birth is the recognition the state gives it in terms of date and time and name of the human that is born. "Being born from your mother's womb is like a fishing license. It is no different than a 'credit card terms' agreement." I could develop this in various directions you wouldn't like, but won't for now because I'm trying to keep it brief. How about just one: In some future political order it could become feasible to make the political or legal argument that a baby born is not a human being until it has received its birth certificate, which is, after all, the "real birth". And then certain conditions might be established for what entails the "right" to a birth certificate. Suddenly, because the ancient reality of birth has been defined as essentially a "legal document", the state has a new prerogative: it gets to decide who is truly "human".

I just want you to begin to see how your founding argument sounds to me: the degree to which it sounds offhand, demeaning, unconsidered. One of the reasons smart conservatives are against same-sex marriage is that they see it as a redefinition of marriage effected via the state which, in effect, establishes the state as final arbiter of what marriage is. This new power is cemented in place by precedent. We are seeing the precedent established right before our eyes. In America each state government that has legalized same-sex marriage has done so in opposition to a sizable minority (and often a majority) of its own citizens. This is how the state takes over a primal cultural institution that is far more ancient than the state is.

Being born or being married each far predate the state and legal contracts. They have a human meaning, both cultural and biological, compared to which the licensing laws or tax benefits or other state-related aspects of the matter are trifling. As cultural realities, they dwarf the state's documents and records and laws.

The degree to which both you and my other correspondent Renge are indifferent to the weight of human historical fact, the ease with which you can brush it off in the name of a 15-year-old social movement, is staggering to me. It suggests an extremely short-term historical lens combined with an inability to grasp the degree to which we don't completely understand what we are as beings. Philosophers and anthropologists realize this: we don't fully grasp our own nature; we are still a mystery to ourselves; many of our central institutions are mysterious even to us, even as we live among them. Further, we little understand the rhythms of our rise and fall as individual human societies. When something is mysterious, as we ourselves are, it is often wise to stick to what has been established over ages.

Yes, I know that in your view culture has always been "lagging behind the real nature of what is fair". Slavery, ownership of women as property, etc., were overcome, so there is doubtless an element of truth in what you say. But note that we also, with our "fairer" modern culture, impoverish and brutalize much of the world outside our borders through imperialism. We employ our advanced weapons to kill countless individuals we have never even met--children included. With impunity. In the name of our "fairness". So I would say the degree to which we have become fairer as we advance is arguable at the very least. But to pursue this would be to drift from my argument.

Armed with your definition of marriage as "legal contract", you proceed to analyze marriage as mainly a matter of rights and benefits that are afforded couples. Again you take the statist approach to the issue, looking at marriage from the point of view of tax breaks, inheritance rights, etc., and say, basically, "What is the difference between same-sex couples and male-female couples?" Well, in terms of these various rights, there is of course no significant difference.

From here you move swiftly to your main argument: People who think there is actually a difference are only basing their view on a kind of religious idea, a "higher authority", which, as you put it, is the same thing as basing it on a "feeling". Because religious ideas or higher authorities cannot be verified. They are just a feeling, and "there is nothing that can be studied, no academic research, no real world explanation for this 'feeling'." There is no basis in "empirical facts".

I see two important elements in your argument here, neither of which holds water with me. First, your claim that people's religious ideas are simply "feelings" and are not a matter of facts. I want you to listen to my friend Alan Liu here, an atheist and serious student of anthropology who thinks you don't know what you're talking about:

The idea that religion is simply a matter of individual emotional attachment to imagined beings and that it is consequently something not "factual" or "real" is a fatuous one. One of the intellectual weaknesses of the "New Atheism" movement is just here: that its arguments so often depend on this weak claim. The problem with the claim is that it misses what is really the essential point. Namely, that religion is a central and probably permanent part of human culture. The New Atheists somehow miss or (we might say) underestimate this very tangible fact. The fact is religion's centrality in culture. Never mind whether God or gods actually exist in a real space over, under or parallel to the earth. That is not the point here. God or gods may indeed be a kind of epiphenomenon projected by collective human imagination, which is in fact how most anthropologists understand deity and the divine. But that doesn't matter. It doesn't matter because the majority of world cultures have come into existence, grown and developed along with their religious beliefs and practices. They have imbued nearly every aspect of their material and productive lives with religious meaning, to the point that their social organization, their laws, their ideas of birth and death and love--indeed, nearly everything that holds them together and defines them as a human culture--are tied in with their religion. So religious beliefs are factual things. These beliefs exist in the world and shape whole social structures. In this sense they are not "imaginary", and they are not going to go away once the science of Richard Dawkins persuades people that the earth is not just 6,000 years old. Indeed, and this is an important thing to recognize, even modern secular cultures, such as those of Northern Europe, where few people now identify themselves as religious, still depend in a very real sense on what we could call the "religious fabric" that was woven in their past. This religious fabric still holds much of their cultural life in balance: it founds their ideas of justice, of death, of progress, of individual rights and responsibilities. These "conceptual realms" of modern Scandinavian cultures can easily be shown to be derived from the religion(s) of their ancestors, despite how secular and modern Scandinavian people believe themselves to be. In the Western world no concept of inalienable human rights would ever have come about without Europe's Christian background. So religions and religions' cultural insights, though these insights may originally be linked to mythical stories, continue being central even in cultures that believe themselves to be "post-religious".

Religion is not just a feeling; it is eminently empirical. As a complex way of ordering the world, making sense of the world, it can be studied and can be shown to be operative even in our so-called "secular" societies. What's more, if a "higher authority", a deity or prophet speaking for a deity, makes some ethical stricture about this or that, it may matter in some respect whether the deity actually exists, but that is not the crucial point. The crucial point is that the culture, out of its own life and practice, came to generate this particular ethical stricture. That stricture may very well have been "put in the deity's mouth", it doesn't matter: the crucial thing is that the stricture was known to be important enough to merit being put in a god's mouth to begin with.

I am very sensitive to this empirical fact about culture, and this is one of the reasons why, even though I am Catholic myself, I chose to write my entire 2012 essay on so-called gay marriage without once referring to the Church or the Bible. Because whether you believe in God is not the main issue here: the main issue is the weight of cultural evidence.

So your argument that traditional ideas of marriage are unpersuasive because they are based on a "religion" or a "higher authority" that "can't be verified", that these ideas are based on a mere "feeling"--really, it doesn't move me in the least. In fact I think you're just factually wrong here. Besides which, you will find that it is also very easy, following your route, to argue that human rights are also based on a mere "feeling", that there is nothing "verifiable" in the "real world" to prove that an individual human being must be treated with more respect than a sponge. But I won't get into how deeply our Western idea of "human rights" is religiously grounded. Rather, I hope to get you to acknowledge a little more viscerally the perspective I'm trying to get across.

Imagine in the not-too-distant future a general global environmental collapse (not hard to imagine, is it?) and that a couple decades after the collapse there is an isolated future city-state, of mixed ethnicity, that is having serious problems feeding its population. Starvation is not occurring, but malnutrition may soon begin gnawing at the city's vitality. The challenge is getting protein into the people's diet. The city is set on an arid and isolated coastline, and the sea, which used to provide much of the citizen's protein, is now dead. The few species left under the pretty blue waves are thoroughly contaminated.

The ruling party is secularist and authoritarian and has a strong grip on power. The party proposes a new law: all local communities must eat their dead. Doing so, the party argues, will give at least a boost to annual rates of protein intake. Previously the city-state's people dealt with the bodies of the dead either through burial, in isolated tracts along the arid coastline, or cremation.

Some academics and citizens come forward in protest. They argue that the very idea of eating the dead is held in horror by much of the population. Note that I say much rather than most. In fact many party followers and young people feel the idea isn't a bad one and that it is merely old taboos or religious notions that keep people from applauding the new law. Christians and citizens from other religious traditions are prominent among those who refuse to follow the law.

The party leadership believes resistance to the law is temporary and will eventually be overcome as citizens get used to the new normal. The government cracks down and launches a campaign to break the old superstitions, which, it argues, are not based on any facts but are simply outdated "notions" or "feelings" that should be overcome or reformed away. As one party editorial puts it:

Every individual in our state is a citizen and compatriot, beloved by us all. Sadly, this citizen that is so beloved of us, that has been with us in life, no longer actually exists once the body has died. We remember him or her in our hearts and in our records and of course in our memories. But he or she can help us one last time in our struggle, by becoming part of the strength of those still alive! Those who find this offensive in some way are wrong. They are thinking in outdated ways. Because a dead body is not a person, but just meat.

The party organizes days each month when any community member who has died must be eaten in public by family members and neighbors. This is to force people, for their own good, to overcome their "superstitious veneration of the dead body", which cannot be proven to be anything other than meat. In fact, as the party puts it in another editorial: "there is nothing that can be studied, no academic research, no real world explanation for this 'feeling'."

I can't say where either you or Renge would stand in this imaginary future political debate. But people like myself would be arguing that civilization is a complex thing, that it is not easy to understand what holds it together, and that even though my dead relative's body is indeed, physically, just meat, still almost no human culture in history has considered eating the dead an acceptable thing. I would be arguing that this historical fact should not be considered important only for religious people in our city-state, but that eating the dead would have unforeseeable and long-ranging effects on people's understanding of life itself--and that we can't really calculate what these effects would be. At best we could make a few predictions. For instance: Continuing with the new policy would certainly alter people's ideas of death. Which is no small thing. Because death, an end to life that all humans face, a kind of ever-looming presence, profoundly influences the way we conceive the value of our lives. Also: It would certainly have an impact on citizens' ideas of the body, on their individual "body images", on their notions of pride in or disgust for theirs or others' bodies. Both of these factors and many others unforeseen may come to have an impact on the morale and viability of the society as a whole. In short, ignoring this "feeling" about not eating the dead will likely have very "factual" and "empirical" sociological impacts, many of which are hard to trace in the short term.

So where would you stand in this future debate? Do you agree that in this case the human historical record, with its taboo against eating the dead, is unimportant? Will you be with those arguing that "culture often lags behind"? But especially: Why is eating the dead not an acceptable an idea? How do we account for our feeling that starting to do so would undermine something fundamental in our being together as a society? If I might presume that feeling. Because I'm convinced that in that future city-state citizens might indeed soon overcome their revulsion, their sense that something wrong was being implemented. But even if they were to lose their revulsion, a hard-to-define cultural malaise would set in; some of the deeper effects of the change would begin to alter the city's previous sense of the purpose of life and their togetherness.

Please note that with this analogy I am definitely not suggesting that same-sex marriage is something as horrendous or offensive as eating the dead. This is not the point of my at all, and I know you have the intellectual subtlety to see that such a notion didn't even enter my head. What I am trying to do is get you to recognize that ancient and universal taboos, often tied up with religious beliefs, may still possess a very concrete social reality. The importance of any taboo, its importance for humanity as a whole rather than for just specific cultures, can be judged by its universality. Some religious traditions involve fasting or self-flagellation: nearly all, to the point of 99.7%, involve a taboo against eating the dead. Some religious traditions support polygyny or polyandry: nearly all, this time to the point of 99.9%, refuse to consider homosexual lovers as married. Is this verifiable historical fact simply irrelevant in our progressive age, as you and Renge both insist? How can you be so sure it is irrelevant?

I've met your father many times and consider him a decent guy, although I must say the last time I met him he kept looking at me like I was some kind of lowlife. In any case, if political push came to shove, I wouldn't want to stand on a sidewalk next to you and other neighbors while we eat your father in the form of wonton soup. And even if I, or even if you yourself, were to believe that eating him in this way is a progressive thing to do, would we really be right to look askance at other merely "religious" neighbors who might feel revulsion, who might feel that there is something topsy-turvy and ultimately wrong in what is happening, even though they might not be able explain this wrong in terms of protein intake and economic theory--in terms of what you call "facts"?

In terms of revulsion or repulsion, I believe the parallel with same-sex marriage here, for many, is not at all a repulsion for homosexual acts or people, but rather one felt at the specter of "same-sex marriage". I think these two kinds of revulsion can be clearly divided. In America, it's true, many men, especially, feel the first kind of revulsion: they feel uncomfortable next to gay men; they feel exceedingly uncomfortable in a gay bar. I've seen men squirming like this, and it is a sad sight. This kind of revulsion, I believe, is coded more by our American culture than it is a universal or ancient one. I think the Greeks and Chinese prove my point.

The second kind of revulsion, the feeling that there is something wrong with same-sex marriage, is different. It is not so much a physical reaction or phobia, but rather a deep sense that the social institution is being twisted; it is a refusal to acknowledge that these are actually marriages; it is an unwillingness to be forced into calling them marriages. In my view, as I've stated, they are not in fact marriages and shouldn't be so named, because once they are so named, the meaning of the term marriage becomes different. I don't want to change the meaning of this term. You point out, rightly, that we are arguing here largely about the meaning of a term. I'd stress that the term in question refers to an important institution; it is not just any old term. No, I will not "cede the term and move on".

I feel this second kind of repulsion, a deep sense that a central institution is being twisted.

Why do I go on about these two kinds of repulsion, why my story of the city-state, why all this writing? It maybe seems too much. I intended to be brief, but I've already way outdistanced your own letter in terms of word count. I think it's because I'm not simply debating here, and not simply trying to understand the intellectual issues of our debate, but I'm also trying to get at my own feelings: What is it, finally, that I'm so opposed to? I think it's important to get these things in the open if we are to resolve our national impasse--if a resolution is even possible, that is.

On your side of the argument, at least in terms of resolving the impasse, it might be worthwhile if you and other "progressive-minded" people were to sit down together and discuss these two questions: "First: Can we accept people like Eric, who seem to be okay with the existence of gay people and gay relationships, but who refuse to recognize gay marriage? Can we acknowledge that Eric's stance is a tolerable one or is it inherently 'offensive' and 'bigoted'? Second: Can we accept people who have that more 'redneck' kind of revulsion, who would feel a kind of horror if they were forced to drink in a gay bar, who twinge a little when they look at openly gay men?"

As for the answer to first question: Hey, it's all up to you. But please at least give it thought. As for the second question, it is a harder one to answer. As I've suggested, I think this kind of revulsion is a product of older American ideas of masculinity, and suspect it is lessening by the decade. Nonetheless, it is not going to go away soon, and I for one think progressives should at least take it into account when thinking about what is socially viable. At present, I think the push for same-sex marriage needlessly provokes these people, who exist in the tens of millions. If America's political order were to shift as a result of some crisis, which is certainly possible, the same-sex marriage push may end badly for LGBT rights in general.

Before closing: You also argue in your remarks against my linking marriage with procreation. You insist that people get married for many different reasons now and that the reason they get married is, again, irrelevant to the terms and agreements aspects of the legal contract. In fact, "procreation itself as reason for marriage today is really, fundamentally, obsolete." I could go into this in depth, but will merely ask, for the time being, if you have ever heard someone say: "Maybe it'd be good to settle down, start a family." Or: "After college I'd like to marry and start a family." What cultural institution are all these people referring to? Even for people who don't marry in order to have children, the birth of children is always a strong possibility. That is the reason their marriages are recognized as such. (Regarding the elderly or the infertile, I have things to say, but will save this question for some other time.)

I rest my case for now. I strongly believe that you, Renge, and obviously millions of other Americans do not adequately respect the depth of mystery in our most primal institutions. There are only a few such cultural institutions--marriage, funerals and family among them--and we are wise not to alter them radically. They are the boundaries of our being together as humans and as such they potentially impact nearly everything else in social life.

Excuse me if these remarks seem dismissive or even, in places (and I'm thinking mainly of Renge) "offensive". If at times they approach offending is it probably because, as a person who has spent my life studying culture, I am deeply struck, at times even pained, by the offhandedness with which both of you dismiss cultural and religious history as irrelevant to the issues of "today". Indeed, my argument, stated early in my first essay, that even major world cultures that respected homoerotic love (those of ancient Greece for instance) still never recognized a thing called homosexual marriage--this point neither of you has even bothered to address. To you it is all just part of the vast scrapheap of history, likely no more worthy of our consideration than Athenian democracy or Plato's political ideas. Yes, I am being ironic again, somewhat bitterly so.

As usual, replies are always welcome, whether from you, Steve, or from anyone reading this discussion who would like to weigh in.

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