5 Reasons The Supreme Court, and Not Just States, Should Acknowledge Gay Marriage

With an encouraging high of 58% of Americans now supporting gay marriage, it is beginning to look excitingly inevitable that gay people will finally have full equality before the law with respect to marriage any day, year, or decade now. It is possible that this will happen as soon as this summer when the Supreme Court rules on the constitutionality of the Defense of Marriage Act and California’s Proposition 8. From what I understand the Court has the ability to rule widely or narrowly, to enshrine full equality for gay people before the law in the entire United States or only in California or not at all or to do different things in between.

There is a debate about whether a sweeping Supreme Court ruling in favor of gay rights as deserving full Constitutional protection is what is best for the cause of gay acceptance. Some wholehearted supporters of gay rights would rather that the states settle the issue of marriage one by one for themselves as democratic steam in favor of gay equality continues to steadily increase state by state, year by year. The idea is that were this to happen, the legitimacy of gay civil marriage would be unimpeachably established to the public mind. Gay marriage would have been ratified as an unambiguous expression of the democratic will of the people. There would be no arguments available that somehow an arbitrary and authoritarian ruling by nine unelected Justices imposed a major change to a fundamental social institution while the American people were still manifestly divided that that change was just, necessary, or for the public good. Those worried about a Court ordered equality, rather than one achieved through more patient consensus building, suggest that it might wind up as controversial as Roe vs. Wade, and mean just as intractable conflict for decades as half the country bitterly charges an activist court with prematurely taking out of their democratic hands a debate they did not feel was at all settled to their satisfaction.

Another reason to favor the state by state, more patiently democratic approach is the overwhelming success of the repeal of Don’t Ask Don’t Tell (DADT). DADT was Clinton’s botched attempt at Solomonic Wisdom that tried to allow gays to serve in the military i and only if they would hide their sexual orientation. While this was meant to provide a compromise way for gays to serve where previously they were forbidden outright, in a bitter irony, the policy wound up having far more gays dismissed from the military after its implementation than before, creating a heightened reality of outright persecution for gay service people to live under. Obama was encouraged early in his administration to take drastic, only dubiously democratic, means to end that invidious law, either by ordering it not be followed simply by kingly fiat in the form of an executive order to disregard the law or by sneaking its repeal into a military appropriations law. Obama instead did things methodically democratically. He commissioned a careful study of expected effects of the policy change so that he had more than just a moral argument but also a solidly empirical one to make about the workability of the policy change. He earned the support of the military leadership for a repeal. He earned majority votes in the House and the Senate. He earned the passage of a satisfyingly unambiguously named  “Don’t Ask Don’t Tell Repeal Act”. He allowed adequate time for the military to implement the policy as carefully as possible. And, outside of the furthest right wing fringes, the out gay service people have finally been a total complete non-controversy ever since.

So, why not follow a similar pattern of building unambiguous consensus of the people in enshrining gay rights to marriage? Why not patiently make the rational case and judiciously avoid any appearances of imposing values where you can persuade of them? Why let the Supreme Court overrule the jurisdiction of the court of public opinion when we are clearly winning there anyway? If gays are to be fully accorded the dignity they deserve by the broader American public, it is important that they win moral acknowledgment and not just legal protection. And so if they are seen to only have rights because the Court protects them when they have not yet swayed enough people to their side on moral grounds, and if this forestalls or outright sabotages that full moral recognition from coming about, then a massive legal victory could come at a the cost of a diminished moral victory. So, given all of this, why should we hope that the Courts force the right moral judgment on a potentially resentful 40% or more of the populace?

1. Civil rights should not be left up to popular vote.

Even where civil rights can be won through the democratic process, they are too fundamental to be subject to the will of a majority in principle. It is unfair to minorities to force them to have to beg and bow and scrape to majorities for their basic human rights to be acknowledged. Any  morally acceptable  constitution written today would have to reflect the clear progress in moral thinking of the last several centuries and automatically enshrine the full and equal dignity and rights of all persons irrespective of race, sex, gender status, creed, sexual orientation, ability status, etc. A constitution written today, to be morally acceptable, would have to rule out in principle any laws which systematically denied any mentally competent adult human beings from full enfranchisement, freedom from slavery, full rights of conscience, access to fundamental social institutions, due process, or any of the other rights that we in America were only fitfully granted through centuries of amendments, acts, and Supreme Court interpretations.

So now it is legitimate that, in lieu of even attempting the politically uphill task of replacing or amending our existing, incomplete Constitution, our Supreme Court take it upon itself to interpret the myriad aspirations and precedents to equal rights for all that our tradition contains, as rightfully including marriage rights for gays implicitly. We should not have gay marriage recognized only as a contingent fact of the opinions of a great number of states in the union (and then normalized in the rest of the states through federal rules that states must acknowledge each other’s unions, once DOMA’s obstacle to that is struck down). Rather, we should have the Court on the record as affirming that it is outright unconstitutional to have it any other way than that gays have the right to marry. It is unconstitutional, if we are to interpret the words of our Constitution and amendments and legal tradition in the way that is most morally consistent and most informed by improved, contemporary understanding of moral ideals. The Court should unambiguously state as much so that the official position of the United States of America is not that we have gay marriages because (soon) many or (someday) all the states (happen to) approve of it. The official position of the United States of America, as made clear by our Courts’ reading of our Constitution and our tradition of judicial interpretation, should be that gay rights are beyond majority opinion and are matters of inalienable right.

2. The Legitimacy of the Supreme Court Should Be Affirmed.

I am leery of playing into the hands of those who want to delegitimize the authority of the Supreme Court. It is a vital branch of government to which we owe the guaranteed recognition of countless vital rights that selfish, shortsighted, ignorant, and pigheaded majorities of Americans past, present, or future may not want to acknowledge. The Supreme Court should not feel bullied by the whims of a sometimes morally obtuse electorate or a Congress which manifestly expresses the will of both the ignorant and wealthy at least as much as it ever considers what is actually good or just. Neither should it cave to our increasingly all-encompassing executive branch.

The judiciary is a coequal branch with the executive and legislative in this country for a reason. The expansive interpretation of Constitutional court powers of judicial review has served as a vital check and balance on the flaws of the other two branches. It is not limitless in power, of course. The executive and legislative branches on state and federal levels have recourse to work around the  courts if they ever go manifestly too far beyond their bounds. They can even team up with the states and overrule an unjust Supreme Court with an amendment if need be. And while the Court is imperfect and can sometimes get things woefully wrong (as it very well could this coming summer on gay rights), it has shown a capacity for self-correction and the executive and legislative branches are, as noted above, not perfect either.

My point is: we should not shirk from letting the Court be the guarantor of rights it has vitally been in the past because of fear of bogus charges that the judicial branch is illegitimate which surface whenever the right wing (or even sometimes the left) does not get its way in this country. We should stand by the Supreme Court and defend its legitimacy as an independent branch of government that legitimately makes its determinations based on law and morality rather than by putting matters of up to popular vote.

3. The Law is a Moral Teacher

To answer the fear that people will be less likely to accept civil gay marriage as morally acceptable if it is “imposed” by the Supreme Court rather than created through popular consensus, underestimates the power of both established law and the simple status quo to influence people’s moral views. Through sheer habit of obeying and otherwise acknowledging the law, we are prone to internalize it to one degree or another consciously and subconsciously. The more we are accustomed to acceding to the law and finding it either beneficial or not harmful to do so, the more we are implicitly comfortable with it and unwilling to change it and the more we think of it as simply morally legitimate and a good general moral guide.

When gay marriage is an uncontestable legal fact, people will increasingly get used to considering the married gay people they meet as unambiguously legally married. The more that happens and the less that they look at gay marriages as in a legal limbo of only hazy social “reality”, the more that gay marriage will be such a fundamental piece of the legal, moral, and social furniture of the world that it would feel bizarre to ever doubt it as fully legitimate. This is how social realities become so deeply impressed in people’s minds as true and unavoidable features of existence—through the rulings of recognized authorities and the immersive training in habit and mind that comes from thoroughly coordinated social acknowledgments of those realities.

4. Gay Marriage Won’t Remain As Contentious As Abortion.

To the surprise of many liberals, abortion remains a deeply divisive moral and legal issue even today, four full decades after Roe vs. Wade. I don’t see gay marriage being similarly intractable a debate decades hence, for several reasons. Whatever the justifiable suspicions that anti-abortion advocates are ulteriorly primarily motivated by a desire to control women’s autonomy, prima facie it is at least plausible that many are quite convinced of a metaphysics of the person that sees zygotes, embryos, and/or various stage fetuses as morally relevant people with rights robust enough to trump those of their mothers.

Settling these issues decisively requires answering sophisticated, interrelated metaphysical, biological, ethical, and socio-political questions. Fundamental, controversial, philosophical questions about the natures of personal identity, mind, sentience, pain, moral community, moral relevance, autonomy, choice, competing rights, women’s liberation, social consequences, human dignity, law, etc. all need to be sifted out to someone’s satisfaction before they can be adequately persuaded to change their position on the moral and legal correctness or lack thereof of abortion. And I’m ignoring theological considerations since I think they are worthless and in principle should be irrelevant. But they are not so to everyone–in fact, to a seeming majority of anti-abortion advocates they’re pivotal–and so there is yet another real world barrier to a full public consensus on abortion rights today. Finally, abortion rights are not a monolithic issue. Abortion of a zygote is not unambiguously the same as abortion late in the first trimester. And neither are either of those identical with second or third trimester abortions or partial birth abortions. And what about infanticide in the case of the severely deformed newborns?

These are complicated issues and I think the Court was profoundly, bravely, and morally progressively wise to rule that key issues among them must be left to the consciences of pregnant women, with only restricted rights of regulation left to the states.

Gay marriage is really hardly like that. Unlike abortions, which are quite often done secretly for fear of cruel public shaming, gay marriages will be unavoidable and prejudices about them will be constantly dispelled on that account. The last 25 years has made it abundantly clear—the more gay people come out, the more bigotries die. Institutionalized gay marriage will make all the myths which prop up fears of gays die even more rapidly. Gay marriage does not involve the kinds of controversial metaphysical or life and death morality issues that abortion can be construed as containing. It is really an issue, at its core, of overcoming traditionalist biases. When the allegedly “traditional” institution of marriage is formally acknowledged to have changed (as it has innumerable times throughout time and across continents) and there are no serious observable negative fallouts, pragmatically, people will just stop seeing it as a big deal. Finally, the youngest demographics, the ones raised with Roe vs. Wade as settled law but gay marriage as a contentious public debate, are overwhelmingly in favor of gay marriage and yet generally as split as their parents on abortion. That tells me that gay marriage will be a moral no-brainer to an insurmountable majority of Americans quite possibly before legalized abortion is (despite legalized abortion’s considerable head start).

5. Gays Deserve Their Rights As Soon As Possible.

People don’t get to live for two hundred years. They cannot wait decades to have the rights they need in order to maximally flourish in their lives and their loves. Marriage is a vital aid to flourishing for many people. Every decade, every year, every month, and every day that it is denied to gay people, they risk being unjustifiably hindered in their abilities to maximally and harmlessly pursue their own happiness. If we can manifestly improve their lives today without significant counter-productive harms to them, this should be a decisive priority.

Your Thoughts>

About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • http://quinesqueue.blogspot.com Qu Quine

    After the last appeal I expected the SCOTUS to decline to take the case because of the standing issue. Prop 8 got it’s day in court and lost, then lost on appeal. If State officials do not find fault with the ruling, there is no need for the SCOTUS to recognize standing by a group of Prop 8 supporters to keep moving up the judicial chain. Now the Court is in a bit of a jam because the standing issue has to be worked out among the Justices before the issue of the merits. If the Court decides to reverse its decision to take the case, that might happen sooner than the expected June ruling.

    The Prop 8 supporters are at a loss on the merits because they can’t show damage to conventional marriage and none was found in the original trial. The 9th was not too happy with the broad nature of the original judgement, but the SCOTUS tends to discount the 9th and go to the record of facts found in the trial itself. That record is so clearly a loss for Prop 8 that it may be another reason the SCOTUS would rather let that stand without taking any responsibility to step it up to the national level. In any case, marriage equality is inevitable, by the Court or by the ballot box.

  • http://thediscerningchristian.wordpress.com The Discerning Christian Blog

    I definitely agree. In fact, I think allowing the states to settle the issue one by one would, in fact, set a dangerous precedent in legal history in which civil rights in general, not just gay marriage, are left to democracy and not imposed unilaterally. What would that say of rights for black people or others who received their rights by judicial decree?

  • Sarah-Sophia

    I think there’s nothing wrong with same-sex relationships, but I’m worried that there could be a backlash against couples in committed relationships who choose not to get married, especially when the economy gets better and the marriage rate goes up.

    • Monimonika

      Those (homosexual) couples can just join the group of committed heterosexual couples who choose not to marry either (and thus are living in sin! ;-) ). What’s exactly does this “backlash” entail anyway?

    • Aaron

      Speak as someone in a dedicated relationship sans marriage for the last 8 years, I think the backlash is that your grandparents and Christians frown at you.

  • http://carloscabanita.blogspot.com Carlos Cabanita

    Marriage equality exists in Portugal since 2010. It was news while the debate was going on and until shortly after the law was approved, when the first gay marriages gathered natural curiosity. Afterwords, the matter completely disappeared from the radar. Only, from time to time, some efforts by the Catholic Church to gather people for some petition to reverse the law, but that position has no traction. Nobody cares. So I think you are right, Dan, once marriage equality passes, it becomes a fact of everyday life almost at once.

  • Theodore Seeber

    I’m sorry, I thought you said you were going to provide REASONS. 1,2, 3, 4, and 5 are all subjective statements with no objective evidence behind them, and thus are not reasons, just more emotional and political claptrap. Let me know when you have an OBJECTIVE reason for Gay Marriage instead of just New Atheist Religious Dogma.

    • http://patheos.com/blogs/camelswithhammers/ Daniel Fincke

      This post was about what is a better way for gay rights to be enshrined in law–state by state or through the Supreme Court. This should have been clear from the beginning. For my actual argument in favor of gay marriage, read this.

  • PhysicistDave

    Dan wrote:
    >The expansive interpretation of Constitutional court powers of judicial review has served as a vital check and balance on the flaws of the other two branches.

    Ummm,. you do know that there is no provision at all in the Constitution for the Supreme Court to serve as the ultimate judge of constitutionality, don’t you, Dan?

    It was all just a sleazy little trick that John Marshall pulled off in Marbury v. Madison.

    Of course, I suppose the Court is no more evil than the rest of the Evil Empire. Personally, I look forward eagerly to the day when the American Imperium has been swept into the dustbin of history just like the Soviet Union. I used to think I would not live that long, but the insanity in DC seems to be accelerating: it could happen soon.

    So, here’s to the demise of the government of the United States of America!

    Dave

  • PhysicistDave

    Well, Dan, the Court watchers seem to think that the Supremes are signaling that they are not quite ready to force Mississippi to legalize “gay marriage.”

    Personally, I’m against it simply because I am against the state issuing marriage licenses to anyone: the idea that the state licenses marriage has struck me as bizarre for the last fifty years, ever since I was a child.

    Instead, let’s just let individual adults sign whatever contracts they want with each other and leave the state entirely out of it.

    Of course, then politicians in both parties could not raise money from the two opposing camps and continue to ignore real issues like murdering foreigners and wrecking the country financially.

    So, I expect this silly debate to continue for the rest of my life.

    At least, I can plan on laughing at both sides for as long as I live.

    Dave Miller in Sacramento

    P.S. I do except the Supremes to strike down the particular provision of DOMA that is before the Court: the actual facts of the case are pretty heart-rending, and I think that will move the Justices.

  • Jeff

    Would it really have been a kingly fiat for Obama to decide not to enforce DADT or the ban on gays in the military? The constitution itself says he’s the commander-in-chief of the military, so it ought be easy enough to argue that saying “gays in the military are just fine” is entirely in line with his constitutional authority. It would certainly be a less pernicious application of that title than…….. pretty much anything else that’s been ordered of the military by the president in the last 10 years or so. And probably more legitimate, too.

  • UsingReason

    I think the fact of prop 8′s existence is enough to show how important it is for the courts to establish equality under the law. Prop 8 was a demonstration of people democratically removing rights from individuals and that should never happen.

  • http://bereanobserver.blogspot.com Bob Wheeler

    I get it! The Supreme Court takes the place of God, creating “morality” where moral absolutes don’t exist, and “constitutional rights” where the constitution is incomplete. How fortunate we are to have such a wise and loving Court!

    • http://patheos.com/blogs/camelswithhammers/ Daniel Fincke

      I get it! The Supreme Court takes the place of God, creating “morality” where moral absolutes don’t exist,

      No. This is about law, not morality. And there is no need for a God when there are naturalistic sources of moral authority.

  • Dark Jaguar

    Ya know, while I agree with your counter argument to Bob’s “supreme court can’t overrule god” argument (as I read it), there is one thing that confuses me. Morality without god? Check. Law without god? Double check.

    Law without morality? How does that work again? Aren’t ALL legal questions, ultimately, moral questions? On the question of the legality of same sex marriage, I take the side of being FOR it. I need not spell out to the choir every last reason why (and the utter lack of reasons against) marriage laws being equal to all fully consenting adults. However, that IS a moral question, at base level, yes? Laws against theft, violence, tax codes, are these not all questions on how a society should conduct itself, and thus moral issues?

    I’m all for taking the wind out of the sails of those who would argue that morality can’t be formed without a divine source. However, to phrase it as “this is an issue of law, not morality”, well, it makes me wonder what standard one uses to make laws, if not morality. It makes it seem like the letter of the law is the important thing. “Regardless of whatever moral outrage you feel, the law is the law, and it clearly indicates that the cheese is always twice the fencepost.”, or, law for the sake of law alone, not for actually helping anyone.

    Maybe I misunderstand the argument, but help me out here. What IS a legal system that exists outside moral concerns?

    • http://patheos.com/blogs/camelswithhammers/ Daniel Fincke

      Yes, of course law is a set of particularized, formalized moral judgments backed by government and not distinct from morality. The issue here was that he was essentially accusing me of relying on the Supreme Court to be the supreme moral authority to replace God. I was just stressing that the authority I was insisting the Court and the Constitution could have would be merely legal. The Court and the Constitution (and not to mention the legislatures and the executives) should recognize certain moral realities and formally codify them, rather than create them. They are not the source of the moral legitimacy of the laws (as some God replacement) but they are the legal authorities who have the power and duty to turn moral understanding into actual, formalized rules. And that’s what I was calling on them to do in the article.

    • http://thediscerningchristian.wordpress.com The Discerning Christian Blog

      Law in a liberal society is more about codifying the method by which we will preserve individual autonomy than it is about morality. In this regard, one does not necessarily have to consider the allowances of the law to be moral. For instance, not all of those advocating the legalization of drugs believe that it is moral to use drugs.

      One could still argue that we are codifying a particular subset of morality, namely that it is immoral to take away the freedom of the individual in some qualified sense. What I would distinguish, though, is that the lawful is not the moral. It is lawful for you to cheat on your girlfriend (I say girlfriend because I believe adultery is actually illegal), but it is not moral. Yet it is ostensibly our judgment that it would be immoral to deprive you of the freedom to perform the immoral in this instance.

  • http://bereanobserver.blogspot.com Bob Wheeler

    “This is about law, not morality” — but the original blog post spoke of “a constitution, written today, to be morally acceptible. . , ” which implies a moral standard that stands above the constitution.
    But you then went on to discuss “The Law [as] a moral teacher. . .,” which suggests that morality is derived from law, rather than the other way around. And then there is the question of what is the law. You state that the constitution is “incomplete,” and that the Supreme Court should simply outright declare gay marriage to be “constitutional,” presumably by judicial fiat. This is starting to sound like an authoritarian political system all the time — perhaps we should just have a politburo to “interpret” the will of the people!
    And of course, with your background in philosophy you are aware of the difficulties involved in establishing “naturalistic sources for moral authority.” Assuming that you accept the theory of evolution, are you speaking of natural selection?

    • http://patheos.com/blogs/camelswithhammers/ Daniel Fincke

      “This is about law, not morality” — but the original blog post spoke of “a constitution, written today, to be morally acceptible. . , ” which implies a moral standard that stands above the constitution.

      You were trying to impute to me a view where the Court was the source of morality. My point was that they are not a source of morality, but implementers of morality in law

      But you then went on to discuss “The Law [as] a moral teacher. . .,” which suggests that morality is derived from law, rather than the other way around.

      No, the law being a moral teacher is not at all the same thing as the law being the original source of moral authority. The ideal scenario is one in which certain, but not all, moral necessities are best guaranteed and taught to people through the law’s influence.

      And then there is the question of what is the law. You state that the constitution is “incomplete,” and that the Supreme Court should simply outright declare gay marriage to be “constitutional,” presumably by judicial fiat. This is starting to sound like an authoritarian political system all the time — perhaps we should just have a politburo to “interpret” the will of the people!

      My point is that our framers had a poor moral understanding of their own purported moral and political principles. Ostensibly this is a nation founded on the principle of equality. Interpreting equality to mean only equality for white, land owning, heterosexual men was inadequate morally and so should be inadequate legally. There is nothing more “authoritarian” about our Supreme Court reading the Constitution with more advanced moral understanding than deficient 18th Century ones than it is authoritarian to be slavishly and uncritically subservient to an 18th Century moral outlook that is manifestly harmful and unjust given modern advances in moral understanding.

      And of course, with your background in philosophy you are aware of the difficulties involved in establishing “naturalistic sources for moral authority.”

      Yes, and with my work in my philosophy I argue that such difficulties can be overcome. I have written extensively about such matters on this blog. Here is a post on the subject to start with. If you address the arguments in it, I can help you find more posts that respond to more of your objections too. If you raise an objection I have not yet treated, hopefully I can find the time to write a new post.

      Assuming that you accept the theory of evolution, are you speaking of natural selection?

      Of course I accept the fact of evolution. But natural selection is itself not the naturalistic source of moral authority. Natural selection plays an explanatory role in how the various brain apparati that we have for dealing with morality arose but morality can be discussed in normative terms that are independent of deference to the natural selection conditions that led to our moral feelings and moral categories of judgment arising in the first place. The source of a thing is not identical with its ideal realization.

  • Dark Jaguar

    Thank you for clarifying your position there. I fully agree with that.

  • Dark Jaguar

    Evolution is not a source of morality.

    Look at it this way. Just because we all agree that the holocaust happens doesn’t mean we actually think it must be morally good, as though only morally good things happen.

    I believe evolution happened, but that doesn’t mean I have to like it.

  • http://bereanobserver.blogspot.com Bob Wheeler

    I did take a quick look at you post “From Is To Ought . . .” and it looks like you were trying to take a modern, updated version of natural law theory. I’m sure you are aware of the difficulty of trying to establish an objective “summum bonum”. Part of the problem is that you spoke of “human natures, in the loose sense of the phrase” — but what is “human nature”? As you know, in the more classical Christian view of things, man is a bundle of contradictions. Is it human nature to be good? Or is it human nature to be selfish and greedy? What do you say to the capitalist who tries to argue that “creative destruction” is good for society, or to Stalin who tried to argue that to make an omelet you have to break a few eggs?
    I noticed that you did make a reference near the end of your earlier blog post to “how the goodness of homosexuality can be assessed naturalistically.” That is, of course, the whole issue in the current debate over same-sex marriage. It is hard for me to see how homosexuality can be considered “normal” if we are defining “normal” in terms of “relative effectiveness.” You can see my own current blog post on the issue at the Berean Observer. (Unfortunately I can’t post a link in your coment section.) On an evolutionary basis one would have to see it as a regressive tendancy (and one that would have been bred out of the species a long time ago if it were really genetic), and of course if there is an element of “Intelligent Design” in nature it would be exactly what Judaism and Christianity have always said it was: morally outrageous.

    • http://patheos.com/blogs/camelswithhammers/ Daniel Fincke

      Bob, thanks for reading my link and working to understand my views. I really appreciate it. I don’t have time to address all the issues you raise yet, but here: http://www.patheos.com/blogs/camelswithhammers/2009/07/an-argument-for-gay-marriage-and-against-traditionalism/ is a very long post (it’s my longest post that is just one straight up essay in the history of the site) where I defend gay love in the context of the kind of ethical framework I have outlined in what you’ve read so far. This post predates the end of my dissertation and the work I’ve been doing since finishing the dissertation, so I did not yet employ some of the vocabulary or tighten up some of the concepts as I would today, but it still makes the case within naturalism for supporting gays.

  • Dark Jaguar

    I want to address the rest, but I’ll address the whole “bred out of the species a long time ago” argument.
    You misunderstand evolution. Some traits may not directly benefit one’s ability to directly reproduce, but COULD benefit that gene if it allowed others who share it to reproduce.

    First thing’s first, instead of thinkiing of a “gene for homosexuality”, how about a “gene for attraction to males” and a “gene for attraction to females”? I don’t have enough knowledge to know which one is the case, but they are very distinct entities. In terms of evolution, I don’t even need to explain homosexuality if it is the latter. A “gene for attraction to males” could easily just get accidentally activated in a male body, and there ya go. So long as those genes exist, that sort of accident will always be possible, and thus homosexuality always with us, as a species.
    However, let’s say it works differently, and the brain is wired not JUST for attraction to males or females, but actually has a flag for “attracted to my own sex” versus “attraction to the opposite sex”. While the end result is identical, the means of getting there matters in this case. Why would a gene for attraction to the same sex exist? Well, maybe for the same reason that genes for extremely low to absent libido exist, to enable members of the species to be freed up from raising their own children to use that time and energy for things that aid their family. In this view, the gene would not be completely dominant, but would be one that could appear in all of a family, but only triggered in the presence of another gene or hormone balance or something. As such, it would be in such a homosexuality gene’s best interest to protect others WITH that gene (but not homosexuality itself), and thus perpetuate the gene.

    However, ultimately, this is irrelevant. Arguments of “they can’t help it” actually undermine the equality of homosexuality in this way. Even if it was not genetic in any way, even if it wasn’t even conditional, but was a completely free choice, I would support the right to homosexuality, on the simple grounds that there is no legitimate cause to restrict it. It can’t harm our species at all, because we are actually AWARE of how reproduction works, and ANY worldwide tendency towards majority homosexuality would not be a threat at all to our survival as a species. We’d see it coming, easily, and just set up a program for volunteers to offer to procreate. I can’t see a situation where humanity would react any differently. People are going to notice if there are fewer children around.

  • http://bereanobserver.blogspot.com Bob Wheeler

    Actually, there are fewer children around, and people are noticing it. It probably has more to do with feminism and the desire of middle class women to postpone childbearing and limit the size of their families so that they can pursue careers, but it is producing a very real strain on Social Security and Medicare. Is the answer to our current budget crisis to set up a program for volunteers to offer to procreate? I’d be interested in seeing how this would work!

  • http://bereanobserver.blogspot.com Bob Wheeler

    I did scan the “Argument for Gay Marriage” article — and it was interesting. I myself would never want to make an argument against gay marriage based on tradition — in a fallen world tradition is often wrong. However, in this particular case it could be argued that part of the problem is that we are abandoning a long established concept of family life, a definition of marriage that is specific and coherent, with one that is both ambiguous and untested. If the basis for marriage is not a heterosexual relationship that serves the primary purpose of procreation, then what is it? A mere piece of paper hanging on the wall? How far do we go in sanctioning “alternative lifestyles”? Is polygamy acceptable? It is hard to see how we can maintain any degree of public morality if anything and everything is permitted, aside from possibly sex with minors.
    I am also a little suspicious of the claims that you made about the capability of homosexuals for committed relationships. This may be true, to an extent, among Lesbians, but I doubt that it is true among gay men. I think that the press has gone out of its way to make the gay lifestyle look more “normal” than it really is.

  • http://carloscabanita.blogspot.com Carlos Cabanita

    Bob Wheeler: people have been getting together, building families and raising kids for thousands upon thousands of years, with or without any paper or blessing. People have also been loving each other in those ways you call untraditional for thousands upon thousands of years. The attempt to get equality in marriage into law is just a way of catching up with tradition, of making justice reach everyone.

    • http://bereanobserver.blogspot.com Bob Wheeler

      Actually I don’t think that it is exactly true that “people have been getting together, building families and raising kids for thousands upon thousands of years, with or without any paper or blessing.” I think that if you look into it that almost every human society has some sort of family law that governs these relationships, and if anything were more important in pre-industrial societies than they are today. The reason is that in a pre-industrial society the family was the chief economic unit, and a marriage involved an economic relationship as well as a sexual one. Thus you had to have a legal code that defined the rights and responsibilities of all the persons involved.
      There was, of course, quite a bit of variety, including polygamy, concubinage, and cultic prostitution. It is also true that homosexuality was widely accepted in certain ancient cultures as well (e.g. Greece). They doesn’t mean, however, that it provided a healthy environment for children.

    • http://carlos.cabanita.blogspot.com Carlos Cabanita

      The upper crust of every society was tightly regulated, surely. Until recently, the plebes lived mostly in the wild. They had to go to church (when there was a priest), pay taxes and sometimes were coerced into the army, sometimes religious persecutions or witch hunts happened. Nobody cared about them. No police, no social services, nothing at all.
      About homossexuality, once more we must not confuse the way the top crust lived with the way everybody else survived. There is almost no data about what happened among the people, except for a very rich vocabulary on every sexual speciality present in the slang of each language of the world. And some indications that among armies and sailors, and lonely women back home, things happened.
      The notion of a healthy environment for children development is a very recent one, historically. Before that children grew up just like wild weeds. Nowadays we’d better avoid old religious ideas about child rearing that belong to times when the study of education and pedagogy was very rudimentary and sciences like psychology, development psychology and sociology did not exist.It is better to thrust science.

  • http://carloscabanita.blogspot.com Carlos Cabanita

    An alternative view on homosexuality: The love for people of the same sex could be present in everybody. Each one of us has lots of dear friends of the same sex. The intensity of the feelings towards those friends can vary a lot. Events of competition for the attention of someone and even of jealousy are common (even if rarely acknowledged). It seems that male bonding and female bonding are very important for the way our species operates. So that trait would be an advantageous one. It would be present naturally with different intensity in different individuals, from the more individualistic and solitary ones in one extreme to those in the other extreme where that trait would be so strong it would manifest itself through sexual attraction.
    Then, comes the social sexual repression and the pressure to conform (all same sex love must be lived as chaste friendships). That would have the effect of ironing out the smooth distribution curve, not being able to flatten just the people who have the impulse so strong they are not able to repress it, so they are marginalized and oppressed.
    It is my present view (the view of a heterosexual male, maybe naive and uninformed) on the matter. I’ll hold it until science comes up with a better one.


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