The Case for Marriage As a Cultural Institution

I found Sam Schulman’s article, The Worst Thing About Gay Marriage, very interesting. It seems to suggest that the modern concept of marriage is already a bit off its traditional rocker, and that gay marriage would go the rest of the distance towards making it utterly meaningless. That is, the historical aims of marriage included protecting women and children, promoting chastity, defining the moment of transition from life as a child to life as an adult, are less relevant today. But, as applied to gays, they have absolutely zero relevance. Instead, marriage for the gay movement is seen merely as the next stage of romantic progression. This is a dangerous truncation of marriage, which traditionally had much broader impact on culture and individual and social human development. Ultimately, Shulman believes, gays will bore of it, everyone else will forget what it means, and the entire institution will die. Hard to say if that’s exactly how it will happen, but it’s a compelling argument.

The entity known as "gay marriage" only aspires to replicate a very limited, very modern, and very culture-bound version of marriage. Gay advocates have chosen wisely in this. They are replicating what we might call the "romantic marriage," a kind of marriage that is chosen, determined, and defined by the couple that enters into it. Romantic marriage is now dominant in the West and is becoming slightly more frequent in other parts of the world. But it is a luxury and even here has only existed (except among a few elites) for a couple of centuries—and in only a few countries. The fact is that marriage is part of a much larger institution, which defines the particular shape and character of marriage: the kinship system.

The role that marriage plays in kinship encompasses far more than arranging a happy home in which two hearts may beat as one—in fact marriage is actually pretty indifferent to that particular aim. Nor has marriage historically concerned itself with compelling the particular male and female who have created a child to live together and care for that child. It is not the "right to marry" that creates an enduring relationship between heterosexual lovers or a stable home for a child, but the more far-reaching kinship system that assigns every one of the vast array of marriage rules a set of duties and obligations to enforce. These duties and obligations impinge even on romantic marriage, and not always to its advantage. The obligations of kinship imposed on traditional marriage have nothing to do with the romantic ideals expressed in gay marriage.

Consider four of the most profound effects of marriage within the kinship system.
The first is the most important: It is that marriage is concerned above all with female sexuality. The very existence of kinship depends on the protection of females from rape, degradation, and concubinage. This is why marriage between men and women has been necessary in virtually every society ever known. . . .

. . . .

Second, kinship modifies marriage by imposing a set of rules that determines not only whom one may marry (someone from the right clan or family, of the right age, with proper abilities, wealth, or an adjoining vineyard), but, more important, whom one may not marry. Incest prohibition and other kinship rules that dictate one's few permissible and many impermissible sweethearts are part of traditional marriage. Gay marriage is blissfully free of these constraints. There is no particular reason to ban sexual intercourse between brothers, a father and a son of consenting age, or mother and daughter. . . . [Incidentally, I have argued the same thing here, here, and here.]

Third, marriage changes the nature of sexual relations between a man and a woman. Sexual intercourse between a married couple is licit; sexual intercourse before marriage, or adulterous sex during marriage, is not. . . .

Now to live in such a system, in which sexual intercourse can be illicit, is a great nuisance. Many of us feel that licit sexuality loses, moreover, a bit of its oomph. Gay lovers live merrily free of this system. Can we imagine Frank's family and friends warning him that "If Joe were serious, he would put a ring on your finger"? Do we ask Vera to stop stringing Sally along? Gay sexual practice is not sortable into these categories—licit-if-married but illicit-if-not (children adopted by a gay man or hygienically conceived by a lesbian mom can never be regarded as illegitimate). Neither does gay copulation become in any way more permissible, more noble after marriage. It is a scandal that homosexual intercourse should ever have been illegal, but having become legal, there remains no extra sanction—the kind which fathers with shotguns enforce upon heterosexual lovers. I am not aware of any gay marriage activist who suggests that gay men and women should create a new category of disapproval for their own sexual relationships, after so recently having been freed from the onerous and bigoted legal blight on homosexual acts. But without social disapproval of unmarried sex—what kind of madman would seek marriage?

Fourth, marriage defines the end of childhood, sets a boundary between generations within the same family and between families, and establishes the rules in any given society for crossing those boundaries. Marriage usually takes place at the beginning of adulthood; it changes the status of bride and groom from child in the birth family to adult in a new family. . . .

These four aspects of marriage are not rights, but obligations. They are marriage's "a priori" because marriage is a part of the kinship system, and kinship depends on the protection, organization, and often the exploitation of female sexuality vis-à-vis males. [I will add that this is the reason we have witnesses at wedding ceremonies—they are not merely witnesses to a sweet, romantic event; they are witnesses to the new marital duties being created.] None of these facts apply at all to love between people of the same sex, however solemn and profound that love may be. In gay marriage there are no virgins (actual or honorary), no incest, no illicit or licit sex, no merging of families, no creation of a new lineage. There's just my honey and me, and (in a rapidly increasing number of U.S. states) baby makes three.

What's wrong with this? In one sense, nothing at all. . . . But without these obligations—why marry? Gay marriage is as good as no marriage at all.

Sooner rather than later, the substantial differences between marriage and gay marriage will cause gay marriage, as a meaningful and popular institution, to fail on its own terms. Since gay relationships exist perfectly well outside the kinship system, to assume the burdens of marriage—the legal formalities, the duty of fidelity (which is no easier for gays than it is for straights), the slavishly imitative wedding ritual—will come to seem a nuisance. People in gay marriages will discover that mimicking the cozy bits of romantic heterosexual marriage does not make relationships stronger; romantic partners more loving, faithful, or sexy; domestic life more serene or exciting. They will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect.

. . . .

As kinship fails to be relevant to gays, it will become fashionable to discredit it for everyone. . . .

In other words, marriage used to be a part of enforcing cultural mores and perpetuating a way of life. Now, that enterprise is taboo. Interestingly, gay-marriage proponents are not content with merely toppling traditional mores, and instead want to force open the definitions to suggest that such traditions now include and embrace them. They don’t want to kill the chief, they want to wear his feathers and rule the same old village with their brave new rules. Schulman believes that it will never work. Either the natives will kill the new “chief” and preserve the old order, or they will all eventually agree that the headdress has no meaning, and collectively cast it away.

(Ironically, I was referred to Schulman’s article by Ed Brayton, who posted his own write-up of the piece, with his usual staggeringly high ratio of insults-to-analysis, under the title “The Dumbest Anti-Gay Marriage Argument Ever.”)

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Why Do Atheists Confuse God with Santa, the Easter Bunny, and the Slimy Custard Man?

Tim Sandefur links to this story, in which Lydia McGrew explains "Why I don't teach my kids that Santa Claus is real." As Sandefur synopsizes, it's because "when kids realize there is no Santa Claus they might also start wondering about God." He complains that "McGrew gives no principled reason for believing in the existence of one but not the other; no explanation of why the arguments that apply to one would not also apply to the other--nothing but a bare assertion that God is 'different. He's real.'"

I am always befuddled that otherwise hyper-intelligent folks fail to grasp that God is a fundamentally different kind of being than Santa, or the Tooth Fairy, or aliens studying Hegel on Mars. When you talk about a claim, such as the existence of God, which, when rejected, undermines the possibility of making intelligible all other claims, that’s fundamentally different than rejecting the existence of the Stay-Puft marshmallow man. As Greg Bahnsen once put it, if I reject the idea that there are so many pounds of Cocoa Puffs in the world, that claim doesn’t have an effect on many other things. But when I reject the transcendental basis for causation, induction, and an objective morality, that's extraordinary.

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How Many "Sexual Orientations" Are There, Anyway?

Ed Brayton thinks it’s silly to suggest that the definition of “sexual orientation” under a proposed federal hate crime law could be interpreted to mean more than just homosexuals. According to Rep. Steve King:

"The definition for sexual orientation was defined by one of the principal authors, Tammy Baldwin of Madison, Wisconsin, as being either heterosexual or homosexual. Well, so within that definition, though, of sexual orientation by the American Psychological Association you've got a whole list of proclivities -- they call them paraphilias -- and in that list, among them are pedophiles.

I’ll grant that this is not the tack I would take. But the review of these claims by PolitiFact is too quick to dismiss the kernel of truth to the argument. Black’s Law Dictionary, as cited by PolitiFact, defines “sexual orientation” as “A person's predisposition or inclination toward a particular type of sexual activity or behavior; heterosexuality, homosexuality or bisexuality.” Even PolitiFact concedes that “That first part seems to lend some weight to King's argument.” But that should be dismissed, PolitiFact says, because the “working definition” of the term, both by federal and state governments, has held to mean simply gays, lesbians, and heterosexuals. Therefore, the argument goes, “It's laughable,” that anyone would worry that the definition might be expanded at some indeterminate point in the future.

But is it really? Would it have been silly to wonder whether Title VII’s prohibition of “gender” discrimination extended to transvestites? The circuits currently split on the issue aren’t laughing. As the elastic cultural waistband continues to expand, more and more sorts of activities will start to seem less and less objectionable. Perhaps pedophilia is a bad example of a proclivity in queue for imminent embrace. But polygamy might not be. We’ve even got an HBO show about it. And incest practitioners have been lurking in the shadows, and I’m sure they would appreciate it if we all got less queasy about their particular “orientation.” As soon as these groups see their political opening, a friendly neighborhood ACLU lawyer will be ready to seize on loose-fitting terms like “sexual orientation,” and argue that the “working definitions” that stodgy, knuckle-dragging officials have clung to for so long have no place in the ever-expanding openness of our morally neutral society.

We commit ourselves to the objective meanings of the words and terms that we choose for our laws. I quite agree that we have no firm idea of what exactly we are committing ourselves to with a term like “sexual orientation.” If we just mean gay, lesbian, and heterosexual, let’s just say that. Who’s afraid of a few extra syllables?

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Derb's Secular Defense Of Traditional Marriage

Leave it to John Derbyshire to make the case for traditional marriage go over like Bob’s your uncle. Most notably:

(3) There really is a slippery slope here. Once marriage has been redefined to include homosexual pairings, what grounds will there be to oppose futher redefinition — to encompass people who want to marry their ponies, their sisters, or their soccer team? Are all private contractual relations for cohabitation to be rendered equal, or are some to be privileged over others, as has been customary in all times and places? If the latter, what is wrong with heterosexual pairing as the privileged status, sanctified as it is by custom and popular feeling?
. . . .
(6) There is a thinness in the arguments for gay marriage that leaves one thinking the proponents are not so much for something as against something. How many times have you heard that gay marriage is necessary so that gay people will not be hindered in visiting a hospitalized partner? But if hospitals have such rules — a thing I find hard to believe in this PC-whipped age — the rules can be changed, by legislation if necessary. What need to overturn a millennial institution for such trivial ends?

Though I frequently defend religion (I've been a Johnny-one-note lately, for some reason), religious justifications for laws are of the lowest order, and only hold up when there is no animus or are not otherwise demonstrably stupid. Derbyshire's are the kinds of arguments that conservatives ought to be making.

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Steve Schmidt Thinks Sticks and Stones Will Break Conservative Bones

Former McCain campaign manager Steve Schmidt says Republicans should drop the anti-gay marriage angle to avoid appearing "sectarian." If the suggestion were purely strategic--i.e., to enlarge the tent--I could understand it (though I would still disagree). But I take issue that there is something wrong with holding "sectarian" views. After all, what else is there? We all hold deeply personal views and seek to demonstrate the rightness of them. Perhaps Schmidt is suggesting a framework that says moral views are irrelevant in the political arena, or that the only appropriate moral limit to one's freedom is that which keeps it from harming another. Either way, Schmidt sounds like he needs directions to libertarian HQ. But everyone gets called a bigot and an elitist sooner or later no matter what views they hold. Even libertarians. It is hard to see any nobility or useful strategy in just conceding the point.

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Support for Professors Yoo and Rotunda and The Right of Free Speech

Below is my letter to the editors of the Chapman Panther in support of Professor Ronald Rotunda's piece, "The right of free speech, regardless of what is spoken":

Kudos to Ronald Rotunda for his piece, "The Right of Free Speech, Regardless of What Is Spoken," for steering clear of the faux legal argumentation polluting the airspace in the debate on detention and interrogation policy. Many attorneys, even those among our law faculty, cannot withstand the temptation to make a legal-shaped block fit in a moral-shaped opening. These "legal" arguments have taken a couple different forms, including a particularly creative one: that the memos written by Professor Yoo and others were legally inept and thus do not qualify for First Amendment protection. It is a clever position that seeks to paint those authors as unmitigated advocates of torture -- perhaps out of concern for national security, or perhaps just out of sadism. So stripped of legal privilege, as the strategy goes, Yoo and co. are now exposed to endless moral stone-throwing by an indignant populace growing ever colder on our nation's "Overseas Contingency Operation."

But this is not a serious argument -- certainly less, at least, than John Yoo's analysis of the legal merits of the administration's positions. To take just one example, Professor Yoo's March 14, 2003 memo -- a veritable treatise at 81 pages on every imaginable domestic and international source of authority respecting the treatment of detainees -- exemplifies the rigor to which the administration subjected the legal issues at play. Yoo even discusses hypothetical defenses based on necessity and the sovereign right of self-defense, which might be raised in the event the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not).

Recently, at The Volokh Conspiracy (http://volokh.com), University of Minnesota professor and former White House ethics attorney Richard Painter, took issue with these defenses as described in Professor Yoo's memo, apparently because they do not answer whether they are likely to be successful or not. Of necessity, any discussion on the defenses available in such unprecedented circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. Thus, attacks from folks like Painter are pure form over function, because, under their view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a court's ruling would be impossible without knowing the politics of the particular judge."

But Professor Yoo took as good a crack at it as can be asked of any lawyer called upon to opine on moral philosophy and political theory -- areas that are "above his payrate" as an attorney giving legal advice. For his efforts, he now receives steady lashings from folks who would modify legal arguments to advance their moral cause. But the real losers are those of us who actually do want real scrutiny on the moral issues at stake: All the noise and chatter from wrong-headed arguments – making legal claims in moral arenas – give the impression that there are no good reasons to be critical of our nation’s interrogation and detention policies. There are. The importance of the moral questions are diminished by blustering legal responses. Lawyers ought to stop offering them.

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Iowa Joins in the Destruction of the Rule of Law

Iowa’s Supreme Court today withdrew from its citizens their civic right to determine their state’s policy regarding marriage, holding that sexual orientation was not an “important respect” of that institution’s makeup. [PDF of the opinion.] Regardless of how you weigh in on the issue of gay marriage, the opinion is an affront to our nation’s tradition of justice. It is a superficial power grab designed merely to advance a moral conclusion through an abuse of legal process. (If you are new to the evaluation of judicial opinions, this is the very characterization we use now when talking about the Dred Scott decision, now haled as one of the worst, if not the worst, opinion in the Supreme Court’s history.)

How superficial is the Court’s reasoning? Iowa Code section 595.2(1) provides “[o]nly a marriage between a male and a female is valid.” According to the Court, “The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage.” (p. 13.) But don’t forget polygamists and kissing cousins. If we were truly using outcome-neutral legal reasoning, we have to recognize that these groups are also excluded. And there is a simple reason for this exclusion: people don’t like it. They think it’s icky. If and when they ever stop thinking it’s icky, and if there’s a critical mass of such folks clamoring for their “right to marry,” they’ll likely get it.

Many people still think gay marriage is icky. The tide is shifting in that area, but the scales haven’t tipped yet. But there is no “equal protection” violation in refusing to recognize a marriage between a couple of men any more than there is in refusing to recognize a marriage between a couple of siblings, a couple of 14-year-olds, or a quartet of what-have-you’s.

Let’s see where Iowa’s precedent would leads, by substituting the aforementioned groups in the following language from the opinion:

Thus, the right of a gay or lesbian person [or a polygamist, or committed cousins] under the marriage statute to enter into a civil marriage only with a person of the opposite sex [or just one other person, or just another unrelated person] is no right at all. Under such a law, gay or lesbian individuals [or a polygamist, or committed cousins] cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation, and gain the civil status and attendant benefits granted by the statute.

Of course, Iowa’s decision is not meant to be read as judicial precedent. It is simply a statement of law – more like a statute. Statutes are fine, when they are passed by a body of representatives duly elected by the people. But not when they are handed down by judges.

The Court concludes that the “plaintiffs are similarly situated in every important respect, but for their sexual orientation.” (p. 28.) Who decides which respects are “important”? Why, the folks in black robes. You can keep your ballots. Put them in a scrapbook to show your grandkids how our nation decided policy matters before judges decided they were better at it.

I would prefer very much that lawyers and anyone else purporting to make legal arguments to advance moral positions just stop it. This is not what legal argumentation is for. As someone who cares very much about the rule of law and the proper exercise of the democratic function in our republic, and markedly less about whether gay marriage is actually sanctioned, I dislike having to rant about the wrong-headedness of gay marriage advocates. I have several gay friends, and my wife and I enjoy visiting with them, particularly at Christmas parties and summer barbecues. I worry that someone would misinterpret my advocacy for the rule of law into a misguided basis of some accusation of "hate-mongering."

The fact is, it is a moral issue. Moral issues are decided in our society at the ballot, not at the courthouse. Iowa’s high court handed down an abysmal decision. Not because its outcome is one that opponents of gay marriage don’t like, but because it is reached by a terrible subversion of the rule of law and legal argumentation. These things may seem stodgy and trivial to those who just want their “rights,” but without them, none of our rights have any meaning.

Please stop destroying the rule of law.

[Update: Some discussion on these points at Dispatches From The Culture Wars.]

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It’s Still OK to Make Moral Arguments

With my tirade out of the way about finding legal arguments where moral ones should be, I would be remiss if I did not also emphasize the importance of public scrutiny and civil dissent regarding our interrogation and detention practices. To this end, a reader directed me to two good articles, here and here, that should set the alarm bells ringing as good moral citizens.

Again, although I believe there is extremely broad, if not unlimited, discretion regarding what an American president can do as commander-in-chief with respect to foreign affairs in furtherance of national security interests, we should not be so agnostic as to what should be done, and not be done, to secure these ends. After all, we are the Zeitgeist -- our attitudes shape the background limits of cultural and moral acceptability. These attitudes need to be articulated.

So, at the risk of extreme self-deprecation, don’t give the devil (i.e., folks like me) a foothold. All the noise and chatter behind the wrong-headed arguments – making legal claims in moral arenas – gives the impression that there is no good reason to be critical of our nation’s interrogation and detention policies. By conjuring up elegant-sounding legal arguments that fall flat in the end we take attention away from the important (although squishy) moral issues at stake.

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Science and the God-Shaped Void

A friend and I were talking recently about the uneasy role our respective religions play in our secular American lives. Religious folks watch crude and profane movies and laugh along with everyone else. Atheism is just different strokes for different folks—no big deal, really, they just opted not to tick the God box. Is there any danger to religious Americans to make room in the public sphere for atheistic perspectives and values? Perhaps we can just do what we’ve done with commercialized Christmas: leave it be, just have to remember that “Jesus is the reason for the season.” Perhaps a more secular culture is ok, so long as we keep in mind what it really means to hold to a religious worldview.

Easier said than done. We are not in a worldview-neutral culture. There is currently not a lot of reason to think about worldviews because, when it comes to much of the important stuff, we happen to believe the same things: individual liberty; human dignity; love of country; etc. But as we are starting to see, in the debates on gay marriage and stem cells, for example, there is increasing pressure to abandon vestiges of our religious worldviews unless they are supported by the atheistic worldview. That is, the morality that comes from old books and stodgy preachers no longer passes muster. Insert some bar graphs and control group data and then we’ll talk. Until then, no one wants to hear about your peccadilloes.

The problem with that is, properly speaking, there is no such thing as an “atheistic worldview.” Instead, we have atheist worldviews, as many, in fact, as there are atheists. This is because science, which serves as atheists’ de facto “god,” is value neutral. It governs only process, not ends. If you want to talk about ends, about truth, about first principles, we’re talking about metaphysics, the branch of study antecedent to science on the human knowledge tree.

To even the religious among us these days, science is the gold standard of truth. Labcoats are preferred to armchairs. No one wants to hear about metaphysics—the physics part sounds good, but this “meta” must mean less good, no?—like “semi” or “pseudo”? To the contrary, the prefix means “more comprehensive; transcending,” as in, physics presupposes metaphysics. Without metaphysics, there can be no physics. Metaphysics gives us the tools we need to do science. Scientific method? Metaphysics. Induction? Metaphysics. Causation? Metaphysics. Unified theory of everything? You guessed it, metaphysics. Natural selection is a scientific theory, but the theory is so ingenious that it entices otherwise sober minded scientists to go further. It has answered so many questions and unlocked so many doors that we forget that it all comes from the same field of study that provides the foundation for both science and theology: metaphysics.

That is what the folks at the Discovery Institute have their alarm bells ringing about. Whatever you think about intelligent design (and I don’t think a whole lot of it), they are right to be bothered that science now thinks it can start injecting non-scientific fields, such as teleology, into classrooms. The notion that teachers could indoctrinate students about a “purposeless” universe is just as objectionable as if they were teaching it did have a purpose. They are two sides of the same coin, with intelligent design proponents on one side, and natural selection proponents on the other. The problem is the coin: either way, preference is given to one side or the other in a science classroom when science proper has nothing to say about it. Present both sides in a confined discussion about metaphysics, or, if that makes the scienceniks too nervous, forget the whole thing.

God should not be injected into science classrooms, but neither should science teachers extend the proper borders of their field. Science has moved beyond focusing on method and has traced its way back up to where it splits off from the rest of philosophy at the juncture of metaphysics and epistemology. Ironically, the intelligent design proponents who are holding ground at that crossroads defend not only metaphysics and religion, but science as well, refusing to let method- and certainty-oriented science trod upon the more nuanced and transcendental branches of the knowledge tree.

We all have a religion. For some, it is science. It is not yet clear whether science or the science-ists will suffer the graver effects.

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On Legalizing It

This recent story from The Economist states the familiar case for fighting the rampant abuse of drugs by legalizing them. From a strictly utilitarian standpoint, I could not hope to argue that continuing the “war on drugs” is the most productive route. However, I have always fretted about what it would mean for our society to condone and promote drug use. Our laws have always been based around promoting “good policy” and keeping clear of “bad policy.” We don’t enforce contracts against minors because, well, adults shouldn’t be contracting with minors (with certain exceptions). We don’t enforce non-compete clauses that are so broad as to threaten one’s livelihood. There are other examples of agreements freely entered into that are not enforceable on grounds of public policy.

The idea is, obviously, that our courts are meant to enforce agreements that in turn promote the public welfare. If we were to turn around our drug policy simply out of defeat, and not because we had changed our moral position on the question, seems this would be an unprecedented and backhanded use (abuse?) of our legal system to alter behavior. Clearly, the idea would be that we would legalize drugs because we hope that we could reduce their use better than by continuing to outlaw them. Somehow, that just seems very strange and wrong. Sounds like a lawyer trick to me. It would lead to either a very sneaky and Machiavellian regulatory and enforcement structure, or a triumph of moral relativism. In either case, I doubt it’s worth it.

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More Bad Secular Epistemology

Heather Mac Donald of The Secular Right has this post responding to Chuck Colson's critique of "scientism." This is an area where secularists and atheists consistently expose their inability to come to grips with the serious philosophical limitations in their worldview. Too many secularists excel at punditry, but are quite out of their their element when it comes to serious philosophy.

Below is my response to Ms. Mac Donald's post:

Heather,

You are not coming toe-to-toe with Colson’s argument. Colson does not deny that scienceists and/or atheists do not recognize beauty or moral truths. Indeed, they do. The argument is that they do not possess a worldview that accounts for such things. Universal standards of beauty, morality, causation, and induction are simply not supported by an atheistic worldview. Instead, they are commonly accused of “borrowing” a theistic worldview. For the most part, theists are glad to have more people under their tent, people who agree that things like human dignity, equality, freedom, et al. are imperative to human flourishing. But without a cogent and systematic supporting framework, they are merely disembodied conclusions floating in the ether, and there is nothing barring one from manipulating them in the service of ghastly purposes.

In other words, the call of Corson and other theistic epistemologists and ethicists is, scienceists should define their premises. This was not historically necessary since, until recently, scientists did not purport to supplant metaphysics. Now that they have cast metaphysics aside, there is quite a hole to be filled. They need to reverse their course or get to the philosophical heavy lifting.

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The Virtue of Capitalism

Most people don't want the world to move as fast as it does, I think. But we have forgotten how to see things any other way. We go to work for people and corporations whose success depends on moving ahead at a lightning pace. These people and corporations become the ideal of humanity. It no longer matters that they don't give us what we really want, were we to ever remember--modest comforts, earnest employment, and time for family and reflection. Instead, they make greater and greater demands to extract for themselves wealth, recognition, and appeasement of the peculiar desire to give body and soul over to career. Over time, we start to take these qualities as the new ideals of a prosperous society, and wonder how to replace our ideas of earnestness and balance with the total subordination of man and nature to an unnatural competitive will. This unmitigated virtue of capitalism starves all of the other human virtues.

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Obama: On Roe Anniversary, I Remain Committed To Choice

CBS has this article, in which Obama reiterates his position that "I remain committed to protecting a woman’s right to choose." To assuage those of us worried that Obama's concern for unexpressed constitutional rights tramples the constitutional right to life and equal protection under the laws, he goes further:

"While this is a sensitive and often divisive issue, no matter what our views, we are united in our determination to prevent unintended pregnancies, reduce the need for abortion, and support women and families in the choices they make," said Mr. Obama. "To accomplish these goals, we must work to find common ground to expand access to affordable contraception, accurate health information, and preventative services."

In other words, better not stand in the way of his social programs, or more unborn are going to die. It's clear he has no scruples about that.

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Prop. 8 financial supporters named on Web site - Press-Telegram

A Long Beach resident has compiled and posted the names of all contributors to the Yes on Prop 8 campaign. Raphael Mazor is reported to have said that these contributors "voted to undermine families by taking away someone's right to get married. It was a personal attack, so you cannot call this just another political disagreement."

This seems to be another example of how our legal culture's enshrinement of super-democratic standards seeks to antagonize our traditional democratic legislative processes. What a shame.

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Mad Max and the Meltdown - WSJ.com

Dan Henninger suggests that the declines in American moral and economic values are linked. Although it's a near impossible thing to prove, I tend to agree.

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Would Plural Marriage Be On the Heels of Gay Marriage?

A popular and, to my thinking, convincing argument against unmooring the definition of marriage from the traditional/historical "one man, one woman" construct is that, once so unmoored, there would be no stopping point. That is, if the alternative view, that "love is love," is taken seriously, then there would be no reason that the numerical restriction should any longer be taken seriously, and plural marriages would be on the table.

I came across this article in which a Mormon mucky-muck agrees, and suggests that a win for gay marriage would result in new lawsuits bringing polygamy and embarrassing Mormon doctrine and history into the limelight. In particular:

Should any state succeed in allowing homosexual, same-sex marriages to become law, it is almost certain that polygamy will rush in on its heels. Should same-sex marriages become legal, there will be no moral high ground for the court to take. I can assure you that it will not be long before petitions come before our lawmakers demanding similar recognition for plural marriages.

It is important to note that, if we eventually recognize gay marriage, it must be done through the political process, not the courts. Through the political process, we can simply declare that the sensibilities and culture of the people dictate that marriage include...whathaveyou. If we opt for a shortcut through the courts, we will be forced to follow that wormhole through to its logical conclusion. In other words, the court-route would require the court to declare, by fiat, a principle by which marriage would be defined. If that principle is something amorphous like "a committed and loving relationship," as the pro-gay marriage folks would have it, then there is absolutely no reason why such a principle would not extend to any such relationship, regardless of number. Being thus tethered to principle, rather than to the sensibility of the people, there would be no stopping point, and plural marriage must also be recognized as a matter of judicial and logical consistency.

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Professor Balkin's Abortion Compromise

Jack Balkin suggests that a "durable compromise over abortion" would look something like this:

if you wanted to imagine how the U.S. would come to a durable compromise over abortion, it would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children. (This is something that many pro-choice advocates will agree to because many of them also support expanded social welfare programs.) The result is a coalition of social justice pro-life advocates with traditional pro-choice liberals.

The problem with such a view, however, is that it presupposes, wrongly, that pro-life advocates have adopted the muddle-headed definitions that the pro-choice advocates have put forth, such as "future potential person," "point of viability," etc. Instead, pro-life advocates see no non-arbitrary line other than the moment of conception at which to assign personhood, and thus abortion is, quite simply, the unjustified killing of a human person, i.e., murder. To merely suggest that pro-lifers may continue to believe that the act is immoral, while removing the possibility of criminal sanction for an act that they quite rightly believe to be murder, is merely to toss them an irreverent biscuit.

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eHarmony Settlement in Gay Discrimination Suit

Eharmony, having been sued under New Jersey's anti-discrimination laws, has settled a lawsuit and agreed to design a separate site for gay-seeking singles. A copy of the settlement can be found here.

Back in May 2007, the company was sued in California. That lawsuit is moot now that the company has agreed to launch its new site.

As a Californian, I find this a very ironic juxtaposition with Prop 8, which reaffirmed the right of the citizens of this state to refrain from issuing a badge of cultural normalcy to certain lifestyles that do not yet resonate with their sensibilities. [more...]

As long as gays are not treated with hostility, or deprived of useful employment or services because of some invidious, wholly irrational purpose, private companies and individuals must be permitted to make up their own minds and make their own choices. But I see no reason why a dating service, especially one that prides itself on an innovative mechanism for pairing certain types of individuals for life-long relationships, should not be entitled to determine whether or not it wants to monkey with its own system to see if it can work as well for same-sex couples. Eharmony should be permitted to decide for itself whether it wants to make this investment, take this risk, and modify its business and marketing models to provide this entirely new service.

In California, Prop 8 just passed because people felt, just as a matter of knee-jerk reaction, that traditional heterosexual relationships were most conducive for marriage. But in New Jersey, a legal system cajoled a company—whose business it is to study hard, empirical data about relationships and make money off of its ability to achieve consistent success in pairing certain types of people—into experimenting with this model and gambling with its success rate by promoting nontraditional, less studied types of relationships. It makes perfect sense, then, that eHarmony reserved for itself in the settlement the right to display disclaimers that its new “CompatibleCouples” website for gay customers “was developed on the basis of research limited to married heterosexual couples,” given that eHarmony has no idea whether this thing is going to float—a company built on data and research is certainly entitled not to move into new sectors in which there is a dearth of data and research.

Apparently recognizing this, the settlement also requires that eHarmony “enlist the assistance of a media consultant experienced in promoting and ensuring fair, accurate and inclusive representation of gay and lesbian people in the media.” In other words, the settlement itself recognizes that this was not just a matter of discrimination—it is a big, risky undertaking that eHarmony should properly have the discretion to determine for itself and its shareholders.

“Discrimination” is a lost word. It no longer means what it used to mean, and it is no longer appropriate in communicating any serious thought. It now lives in the unscrupulous civil rights attorney’s toolkit.

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Rebuttal to "Abortion and Abolition"

Several weeks back, I posted a response to Diana Hsieh’s op-ed, “Abortion and Abolition” over at NoodleFood. I was struck by the title since I had also always thought of abortion and slavery as linked—albeit in the opposite way that Ms. Hsieh conceives. As the post and the responses that followed gave me an opportunity to flesh out some of the more amorphous points of the debate, I thought I would try to compile it for my own edification, and for that of whoever happens to stumble upon this post. [more...]

The primary similarity between the respective arguments for slavery and for “reproductive rights” is the focus on the “personhood” of the slave and embryo/fetus, respectively. Both arguments for slavery and abortion succeed or fail on this point. If slaves are something less than persons, we are morally permitted to enslave them. (It still may not be a good idea, or a wholesome idea, but at least Aristotle even defended the idea of grooming slaves to be good citizens who would eventually gain their freedom.) And if embryos or fetuses are less than persons, then whatever rights they may or may not have are eclipsed by the woman’s privacy rights. (Or “reproductive rights,” if we are given to such fashionable, albeit droll, terminology.)

Lincoln himself did not believe (as far as the historical record can support) that blacks were “equal” to whites in all respects. And in fact today we know that there are intrinsic inequalities between races. Some races are more predisposed to certain diseases. (My grasp of detailed examples is poor, but I believe the point is readily conceded.) In our personal lives, we need not pretend that we are each equal. We are not. We probably should have a good reason when doing so, but it is not legally required.

We do require our state to have a good reason, however. The state has to have a non-arbitrary basis for treating ANYONE differently. And the forcefulness of the reasoning required escalates depending on the importance of the right at stake. In the case of abortion, we are talking about the most important, most fundamental right that can possibly belong to anyone: the right to life.

But this is getting ahead of ourselves, of course, because we first must decide whether that issue is actually in play—that is, is the fetus a “person”? Can we draw a non-arbitrary line at which a fertilized egg becomes a “person”? No. It simply cannot be done. The best we can do is make approximations, or come up with other fictions that are not any better than the vague term “person” (e.g., “self-awareness” – good luck with that one; I know grown adults who fail this test). Specifically, the argument that personhood depends on self-containment and lack of dependence on the mother is rebutted by pointing to the “famous violinist” hypothetical: waking up and finding that a world-renowned violinist has been grafted to your organs in order to keep him alive brings up some problems of justice, privacy, and self-determination, but one is hard-pressed to argue that the violinist has lost his status as a “person.”

Another less imaginary example is Siamese twins. That these folks are most definitely persons I will take to be uncontroversial. (One reader pointed out that this point was indeed controversial because the twins do not possess “individual” rights. Even assuming, arguendo, that that were true, our Constitution guarantees rights of “persons,” not “individuals.” Thus, such a semantic shift is unwarranted in this context.) What might be controversial is the question of rights as asserted by one twin against the other. For example, if the twins could be separated, but one would certainly die where the other would not, does the latter have a “right” to separate, and thus kill, the other? What about if one had more control over the motor functions? Does the one with less control have any less right to life than the one with more?

These questions lend to solutions that are more pragmatic than rational. That is, they force us to define the meaning and purpose of the lives at stake, and thus make a determination that will best effectuate that purpose. This, of course, irreparably short changes the lives at stake, as their telos (purpose) is defined by the preliminary rule that guarantees their existence. Thus, in an abortion culture, all persons who are born have a right to their lives, but only to the extent of the telos that effectuated their being carried to term, i.e., being wanted by the mother. When it is no longer the case that the new person is wanted by any other living person, their rights terminate. This is the inevitable conclusion of defining the right to life teleologically (i.e., by whether or not the mother “wants” the child) rather than deontologically (i.e., by a society that defines the child’s life as unequivocal, inviolable, and inalienable—the same way it defines the life of any other person).

One of the differences between Siamese twins and a pregnant woman is the issue of timing: one Siamese twin generally cannot claim a superior right to life based on time, although the pregnant woman can. But can this have any bearing? Does a young man have less of a right to life than an old man? We sometimes talk about potential, etc., which might even suggest that the young man has more of a right than the old. But again, this would be a way of defining the right to life teleologically. At any rate, this is too sloppy a way of determining something so important.

Now that we have spent some time talking about the fetus’s right to life, we must discuss the countervailing right that is indisputably at issue, the mother’s right to her body. Abortion rights advocates suggest that requiring a woman to assume the risk of pregnancy and childbearing in order to be sexually active deprives her of liberty in sexual matters. (Although it always seems highly implausible that someone would make this gigglesome argument, I come across it again and again.) There are few areas in which we have perfect, unrestrained liberty. Any number of our actions mete out externalities, and we glean a better and better understanding of the nature and extent of these externalities as time and technology progress. To say that prohibiting one form of “birth control” (a horrifyingly benign expression for abortion, in my opinion) is a “deprivation of liberty” is pointless rationalism. “Pointless” because, yes, it admittedly is a deprivation of liberty; but because nearly all of our liberties are limited in certain ways in order to make political life possible, a mere “deprivation” is not the standard for determining whether it is appropriate or not. There are myriad ways to prevent getting pregnant. Abortion hardly seems a necessary precondition for a woman to enjoy her “sexual liberty” (whatever that means).

It has also been suggested that, even if we assume both the woman and unborn have rights, we don’t require one to sacrifice its rights for the life of another. This is not always the case. Although common law doesn’t impose a “Good Samaritan” duty to affirmatively provide help, the law provides the doctrine of private necessity as a defense to trespassing, for example. In other words, there is no affirmative duty, but there is a negative duty (you cannot recover against one who uses your property, without consent, for his health or safety). One will certainly point out that with pregnancy we are talking about one’s body, not merely property. And I will concede that the doctrine of private necessity certainly has not been construed to this extent. On the other hand, there is the issue of consent that is also different -- private necessity applies even where there is no consent on the part of the landowner, but with pregnancy, the woman has tacitly consented through the volitional act of intercourse. (Again, instances of rape notwithstanding.)

As far as the state is concerned, there are two beings with rights. Given that there is no non-arbitrary way that the state can take the position that the fetus is not a “person,” and given that the right to life is necessarily of greater weight than a right to “sexual liberty,” or to “reproductive liberty” (especially given that in the vast majority of cases, the mother had some say in the conception process), the balancing is a no-brainer—abortion is indefensible in a government that purports to defend life and forbid arbitrary enforcement of rights.

In the end, I believe the only reason people can stomach abortion is the simple pragmatic reason that, hey, I don’t care if the baby is born, and if the mother doesn’t even want it, then who gives a rip?? Abortion can only be “lawful” in the sense that it simply has not yet aroused enough passion in enough people do undo that unrigorous and approximated judicial fiat that now governs the matter.

But that is a debate for the touchy-feelies, not those of us who want a rational explanation. And if we’re being rational, we have to recognize there is no non-arbitrary line. Conception creates a “person.” We can strip away its rights because of the number of cells it has, or because it is located inside its mother’s womb, but we only get away with such justifications if we squint our eyes real hard and pretend they’re good answers. And this is the same way our nation stomached slavery for so long. We might always wonder whether, without Lincoln, we might still have slavery; but we now know that, with or without our current emotional disposition towards that vile institution, it is and always was intrinsically evil. It is my humble and hopeful prognostication that it will be just so with this issue.

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Why I Am Not a Utilitarian

Why I am not a utilitarian. Some negatives are immoral and others are not. We remember bad decisions for a time. We remember immoral ones for a lifetime. Utilitarianism depends on being able to unpack all things to their simplest essences. But practically speaking, we cannot. We are not binary. We are bound up not in ends, but in means, in giving consideration and dignity to all aspects of our humanity, not only what we can classify as "valid" or "invalid" in syllogistic terms. Our sensibilities are not binary. But they are not for nothing.

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