Thursday, June 27, 2013

Two Competing Views of Marriage

What I thought was rather nice about Alito's dissent is that he was able to properly identify actually what is at issue. That is, he identifies that the debate is merely over competing views of what marriage is, a purely philosophical question. I thought I'd copy/paste from the opinion:

By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage. 
The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex. Brief for Respondent BLAG (merits) 2 (citing Her­nandez v. Robles, 7 N.Y. 3d 338, 361, 855 N.E. 2d 1, 8 (2006) (“Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex”)). And BLAG attempts to explain this phenomenon by arguing that the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Brief for Respondent BLAG 44–46, 49. Others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so. See, e.g., Girgis, Anderson, & George, What is Marriage? Man and Woman: A Defense, at 23–28. While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.

The other, newer view is what I will call the “consent-based” vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination. 
The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted). The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. Yet, Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.
It's not the most incredible philosophy out there, but it's definitely succinct and on point. That it can be so obviously laid out and not addressed at the same time speaks volumes about our legal process in a lot of ways. 


  1. I'm starting to notice more and more people becoming hostile to the very idea of philosophy, and I think it's for a simple reason: the moment it's admitted that a question is philosophical, it's stuck for many in the Ultimate Morass. Worse, that's the moment where arguments are no longer assumed - they are required, and eventually fundamental commitments and motivations come up.

    The funny thing is, even philosophers sometimes seem to twitch when philosophy is brought up. I remember going to a philosophy teacher's blog where he argued that the very question of the morality of same-sex acts was inappropriate for philosophers to discuss: the answer was 'yes', and this literally could not be questioned, since the very act of allowing questioning emboldened bigots.

    1. Yes, I think this is absolutely correct. We either cover it up with "democracy" or we walk around with an air of "duh, of course that's okay." It's a very "onward and upward toward...uh...something!?" attitude.

  2. Glad to see that at least one Justice is seeing things clearly. The 'consent based' "version" of "marriage," however, seems to be incoherent or at least inchoate. Take the matter of restricting marriage to two individuals; the only reason marriage has been traditionally restricted to two individuals of the opposite sex is because of that coupling's potential to lead to the creation of new members of society to be raised culturally and biologically in the most nourishing familial unit by their natural, biological parents. Now imagine if that tie to procreation is rejected, as supporters of same-sex marriage seem eager to want to do. Now what basis exists for restricting "marriage" to, say, 12 men and 15 women all "love each other" and are "committed to" one another? They obviously cannot appeal to the tie to procreation they have already rejected. So upon what basis can the state then deny that poly-amorous cluster "marriage"? Likewise with a father and his son who are "lovingly committed" to one another, or a woman and her grandfather and uncle, etc., etc., etc. So what can the supporter of same sex "marriage" do at this point in order to prevent these absurdities from being realized? Not much, it seems. All he could do is simply impose some utterly arbitrary legal threshold to limit "marriage" to two individuals. But not only would that open the door to all manners of incestuous "marriages" and the like, but would, as already noted, have no rational or legal basis to maintain and would so be completely open to challenge. Or perhaps what the supporter of same-sex marriage could do, just as perhaps he (erroneously) accuses the opponent of same-sex marriage of doing, is damn the torpedoes, dig his heels in and provide a sort of inchoate stare decisis defense to maintain the limiting of "marriage" to two individuals, leaving his position utterly arbitrary and open to challenge.

    A version of Feser's argument contra same-sex marriage (as he presents it here: that I've modified and use quite frequently seems to be apply quite aptly:

    P1.) If you accept the proposal, as support of same-sex marriage entails, that marriage, instead of being an institution established to oversee the responsibilities attendant upon procreation, is actually a conventional institution that exists to join/recognize individuals who are "lovingly committed" to one another, regardless of that love's fecundity, then logic demands that you also accept a "marriage" between 4 men and 4 women who have a "loving commitment" to each other, or a "marriage" between 1 man and 16 women who have a "loving commitment" to each other, or a "marriage" between a brother and a sister who have a "loving commitment" to each other, or a "marriage" between a brother and his father who have a "loving commitment" to each other, or indeed anything whatsoever that one may want to call "marriage," for someone could always argue that even the "loving commitment" criterion is as arbitrary and open to challenge as the heterosexual criterion is.

    P2.) Supporters of same-sex marriage claim to be against these other configurations of "marriage".

    C: Therefore, their position in incoherent.

    1. I think that this is correct. You forget, perhaps, the ability of people to hang their hats on some amorphous concept of "love," relying on the belief that 15 people can't Really "love" each other like two people can as partners. This usually works for people because it's completely unverifiable one way or the other. (And, of course, most people do like two-people partnerships.) It's enough for people to remain consistently inconsistent. You can even see this in case law, where courts view marriage as a "fundamental right," citing intimacy and closeness as the ends of marriage. It's often just seen as a sort of feel-good benefit that everyone should get.

      It is inconsistent and ridiculous, though. "Valid" love isn't a legally rational criteria, though, especially considering the fact that people need not love each other now to get married. I have no idea what rational argument they could actually put forward in defense of a two-person union. I've never come across a valid criticism of polygamy from that particular viewpoint, even in a law school context, where most people do subscribe to the consent-based version described here.

    2. There's a lot of truth to this. I find that in conversations with supporters of same-sex marriage, I would advance such an Argument from Consistency Contra Same-Sex Marriage as the one above only to be met with hand-waving and deliberate obfuscation as to what love "really means" or semantic fidgeting over what "commitment" means or whether more than two people can "really be committed," etc. And if I would get past this silly phase, I'd then be met with point-missing responses like "well, I personally have no problem with x-type of marriage [x being incestuous marriages, polygamous marriages, polyamorous marriages, etc.], I just doubt there's enough of a constituency to get a social movement going in its favor".

      I suppose that what would be most beneficial to the enterprise of opposing same-sex marriage would be to convince people that marriage is not, in fact, aimed at the uniting of individuals who simply consent to enter into "marriage" but is rather aimed at the union of a man and woman to channel their biological urges to not only create the next generation of society but to stabilize it as well. This unfortunately seems to be an uphill battle, however.

  3. Very insightful. The premise of gay marriage is definitely ridiculous, but besides metaphysical standards being ignored, what reasons exist to oppose it as a government institution?

    1. That's a good question insofar as the general audience following the issue of same-sex marriage is altogether disinterested and utterly ignorant of Natural Law as it obtains on sexual morality and marriage specifically. I find it useful, for example, to convince individuals who are ignorant of philosophy that same-sex marriage is pernicious to the social good (often on consequentialist grounds).

      For example, I see same-sex marriage as pernicious for at least two reasons:

      I.) The grounds upon which the support of same-sex marriage rest commit one to the accepting of all sorts of absurd configurations of "marriage". Seeking, for the sake of consistency, to "extend" the benefits of marriage to these absurd configurations of marriage would entail the granting of adoption rights to these configurations and/or would otherwise the granting of a green light to confer benefits for the rearing of children in these absurd configurations. This leads to the absurdity that is the promoting of the raising or rearing of children in "families" that could be configured in such a way as to be, say, 13 men and 17 women, or two siblings, or 3 homosexual siblings, etc. In other words, this would entail the raising of children in a "family" with, say, 20 "fathers" and 18 "mothers" or in incestuous relationships, or in same-sex relationships. No one unwilling to associate with fringe kookdom would ever even pretend that such are ideal environments within which to raise a child. That is not to forget to mention, however, that countless empirical studies coupled with our empirically verified common wisdom tell us that a child is best raised by both his or her biological parents.

      II.) The accepting of same-sex marriage promotes the idea of making the the happiness of the parties to the marriage the purpose of marriage rather than the good of the children or the social order. When married persons care more about themselves than their responsibilities to their children and society, they become more willing to abandon these responsibilities, leading to broken homes, a plummeting birthrate, and countless other social pathologies that have become rampant over the last 40 years.

      Those are good reasons, as far as I am concerned, why accepting same-sex marriage is pernicious to the public good.

      However, there also is the question of what compelling interest the state would ever have in in subsidizing relationships simply because two or more people have fuzzy feelings for one another, or to recognize that two or more people sodomize. So the supporter of same-sex marriage must, as I've said before, convince me of two things: (i) that their position is coherent; and (ii) that the purpose of marriage as they envision it is of compelling interest to the state and public good.

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    3. @ Anonymous

      Call me old-fashioned, but I think that the law should reflect the truth, simply because it's the truth. If only because a lot of people take their cues from the law, and so a false law will lead a lot of people down a dark and self-destructive path.