As I made my way through the 100+ page ruling of the recent Supreme Court decision on gay marriage, I was puzzled by a subtle discursive difference between the majority and dissenting opinions. I couldn’t put my finger on it until the word leapt out from page 5 of Justice Roberts’ dissenting opinion:
“The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.”
Should. The moral stance laid bare, finally.
In the 35 pages of the Opinion of the Court, the role and nature of marriage was asserted but never argued. I waded through many proclamations of “the fundamental character of marriage” and the “transcendental nature” of marriage until I could make out what exactly the five judges perceived the character of marriage to be, and what they were arguing it should be— for these philosophical and moral questions, to me, were the most pressing ones, and ones they seemed to be taking for granted.
Roberts, however, unveiled the moral position of heterosexual marriage advocates by using words like “the good of children and society” and “should.” He also points out, tartly, the cloaked but undeniably moral stance of the Opinion of the Court:
“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.”
And, Roberts argued, because the question of gay marriage is fundamentally a philosophical and moral question , it must be settled by the democratic process, not a judicial one:
“The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of ‘due process.’ There is indeed a process due the people on issues of this sort—the democratic process.”
But the problem is not just that the Court justices interjected their own moral views; it’s that we haven’t done so clearly enough.
When some tried to express a moral stance in the gay marriage debate, they were often derided for “imposing their morals” on other people, or simply for being “bigots” (in a wearying and noxious misuse of the word) . On the other hand, some people or groups expressed their moral stances in religious terms that were not secularly accessible, or that failed to adequately explain the moral and philosophical beliefs behind them . But making transparent our moral and philosophical stance on the moral and philosophical issues of sexuality, child-rearing, identity, human nature, and human flourishing is precisely what we should have been doing all along.
I’m not saying there has been no such discussions; but in many I’ve witnessed, they have often been couched as blunt assertions ignorant of their own philosophical, moral, and historical situatedness , and thus invulnerable to critique or even mutual understanding. (Some of the most compelling pieces I’ve read on this issue are those that expose and assess the philosophical foundations behind the arguments, like Nate Oman’s essay here and many of Ross Douthat’s pieces on the topic, like this one here.)
Nor am I saying that it is not also a legal question (i.e., what types of relationships should the government be regulating, etc.). But I think untangling what issues should be understood and addressed legally, and which ones should be understood and addressed morally, philosophically, and therefore culturally and perhaps legally, we could have a more productive and honest conversation .
Ultimately, these are questions of what we think constitutes human nature and what can secure the good life, and these take us into a realm of complicated distinctions, plural and sometimes mutually exclusive goods, but perhaps more common ground than we realized– but perhaps irreconcilable conflict, where only the democratic processes of persuasive and unfettered argument can determine the outcome . Anyone who thinks the issue is simpler than this is, I believe, deceiving themselves at great expense to our social fabric and moral culture.
To be sure, obfuscating simplifications and emotive assertions are bipartisan failings. Alasdair MacIntyre, one of the most penetrating moral philosophers of our day, argues that this has become a feature of modern politics. Because our post-Enlightenment age has dismantled Western society’s formerly shared understandings of the human good, moral enquiries are reduced to expressive or emotive utterances that attempt to take on the weight of impersonal moral or rational authority without any such standard being established or agreed upon.
We can see this on both sides; for example, in the way some gay marriage advocates talk about “love” and some traditional marriage advocates talk about “marriage.”
Take the recent hash tag #LoveWins. Unpacking this further, I think gay marriage advocates view marriage as primarily a mechanism for making the emotional unity and sexual relationship between individuals socially visible, culturally dignified, and legally protected. Why? Because love, expressed through commitment, devotion, and sexual expression (i.e. marriage), is a human and social good. Furthermore, sexual orientation is immutable, and sexual expression is an end in itself; to instrumentalize it (towards procreation, for example) or limit it (prohibit sodomy, for example) is not only unnecessary but perhaps self-mutilating.
The Opinion of the Court also views love as a type of “personal choice central to individual dignity and autonomy.” So while love’s sexual expression is “immutable,” and therefore not subject to constraints, love is also a “choice,” and it is the choice that becomes paramount in many liberal arguments. To love is to choose; to choose is to exercise freedom; freedom is a human right.
Of course, these moral and philosophical claims are open to critique. For example, many advocates most likely wish to constrain sexual expression along some ethical parameters; between only two people, for example, or people of certain ages, or maybe in certain forms and not others (SM is out, perhaps). It is not clear to me what framework they are using to justify these exclusions or limitations, if the premise is that sexuality is its own end. Roberts pointed out as much in his dissenting opinion, that the principles undergirding same sex marriage (dignity, choice, self-expression) apply just as forcefully to polygamous arrangements. It is also possible to critique the paradoxical relationship between choice/freedom/right and marriage, as Oman and Douthat did in their essays linked above and also here. They argue that it is internally inconsistent or unsustainable to advocate for [gay] marriage on the basis of the very principles that were used to undermine marriage during the sexual revolution: choice, freedom, self-expression.
Let’s take a look at an example from the conservative side. As Ross Douthat pointed out in a NYT column years ago, conservative arguments that asserted a timeless or universal, and thus static or self-evident, conception of “traditional” marriage “have lost because they’re wrong.” Rather, he continues,
“What we think of as ‘traditional marriage’ is not universal. The default family arrangement in many cultures, modern as well as ancient, has been polygamy, not monogamy. The default mode of child-rearing is often communal, rather than two parents nurturing their biological children.”
Douthat laid bare the moral stance, the ultimate “good” or telos underpinning heterosexual marriage, this way:
“So what are gay marriage’s opponents really defending, if not some universal, biologically inevitable institution? It’s a particular vision of marriage, rooted in a particular tradition, that establishes a particular sexual ideal… The point of this ideal is not that other relationships have no value, or that only nuclear families can rear children successfully. Rather, it’s that lifelong heterosexual monogamy at its best can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition and support… And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.”
Unpacked further, such a position would reveal the philosophical beliefs that the kind of marriage best suited for the flourishing of human beings and societies is one that recognizes, nurtures, and privileges the uniquely fruitful relationship of a man and a woman and the organic bond between a child and their mother and father. This “good” warrants state interest because without it, its society cannot survive. Marriage, then, should be primarily (but not exclusively) a functional apparatus to protect and nurture those unique biological, psychological, spiritual, and emotional bonds.. Marriage, in other words, should be grounded on the sacrifice of certain elements of autonomy and freedom for the good of our social natures and for the good of society more broadly. Of course, such an aspiration is not always attainable, and approximations are made available (like adoption) .
It is this view I find more compelling, though of course I did justice to neither the examples nor the broader positions behind them in this short post. Ultimately, I believe that human beings are born belonging, and that such physical, emotional, and spiritual interdependence shapes our telos. We should live and die belonging, and construct our lives in ways that strengthen the purest and richest bonds of belonging (sacrifice, forgiveness, vulnerability, compassion, commitment). To the extent that gay marriage wanted to offer more individuals—like gay couples and the children they care for– a fuller scope of belonging (marriage), I am sympathetic. To the degree that gay marriage wanted to offer more individuals autonomy, rights, choice, privacy, and freedom, where marriage was but a secondary means of exercising those primary “rights,” I am disheartened. And while I do not have space here to go on, I think the cost of making those first gifted bonds— the biological ones between parent and child— optional, commodifiable, or completely erased, at the altar of adult “rights” or even good desires for children of their own— is a moral tragedy, in both sense of the word: a lamentable outcome, but also a conflict between competing goods.
So I wrote this post in the hope of making more transparent some of the moral and philosophical questions that underpin our nation’s discussion on marriage, because I think that a) judging from the reactions to the legislation, such questions are still obscured behind naive assertions of what marriage or love “is,” and the issue will always be contaminated with mutual prejudice and misunderstanding unless we can go deeper, b) we will face many more questions about marriage and sexuality in the coming years, and I’d desperately like to see the conversation unfold more transparently and constructively. We’re in for another very long, brutal, and destructive struggle otherwise.
Making transparent our moral and philosophical beliefs may not “resolve” the debates; but it may, at the very least, help us embrace each other as interlocutors, if not partners, in concerns that deeply touch all of us. And this, I think, would be a moral victory for all of us.
1. I use these terms broadly to refer to, respectively, inquiries like “what constitutes human nature and its potential” (philosophical) and “how ought we to realize that potential” (moral); or, more concisely, our “is” and “ought.” Alasdair MacIntyre, in After Virtue, puts it this way: “Within that teleological scheme there is a fundamental contrast between man-as-he-happens-to-be and man-as-he-could-be-if-he-realized-his-essential nature. Ethics is the science which is to enable men to understand how they make the transition from the former state to the latter. Ethics therefore in this view presupposes some account of potentiality and act, some account of the essence of man as a rational animal and above all some account of the human telos. The precepts which enjoin the various virtues and prohibit the vices which are their counterparts instruct us how to move from potentiality to act, how to realize our true nature and to reach our true end. To defy them will be to be frustrated and incomplete, to fail to achieve that good of rational happiness which it is peculiarly ours as aspecies to pursue” (53).
2. Bigot = “a person who is intolerant toward those holding different opinions.” This is related more directly to the mode of argument rather than the content and applies, in my experience, to people on both sides of this issue.
3. The LDS Church quickly shifted its public position from a religiously grounded one (God’s law) to a morally grounded one (children have the right to a mother and a father). It seems like, in the wake of the legislation, they may be returning to more religiously grounded language to protect the right, if not social persuasiveness, to preach and practice its doctrines under the protection of freedom of religion. However, I think other religious traditions, like Catholics especially under John Paul II, have articulated a rich moral philosophy of sex and marriage, and that Mormon leaders can–and should– pursue that option, especially for the sake of its own members.
4. I interject “historical” here because our moral and philosophical values do not arise in a vacuum; they are the products, at least in part, of inherited cultural or religious frameworks and vocabularies, which Charles Taylor in A Secular Age and Alasdair MacIntyre brilliantly show–and urge us to be more aware of.
5. In other words, it is possible that something could be ethically non-ideal, but legal, like alcoholism. But people could rely on cultural mechanisms (cues in the media, personal attitudes, etc.) to encourage the ethical response. But determining which issues warrant which responses is, to me, another complicated issue.
6. Another reason why conversation-stopping words like “bigot” or “hate” profoundly disturb me; the whole democratic process is warped when we silence, explicitly or implicitly, other view points.
7. As a personal anecdote, it was this realization— that adoption is meant to replicate the family unit— that halted my research into adoption as a single woman. I realized my “right” or desire to be a mother should not trump the “good” of a child being raised by both father and mother. This conclusion also relies on beliefs about the reality and importance of ontological gender differences, which I lack space to pursue here, but represent another philosophical position that is open to critique and could be discussed more transparently.