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The U.S. Supreme Court and Same-Sex Marriage:

I've long (and publicly) opposed the Federal Marriage Amendment, because it unnecessarily interferes with states' decisions about same-sex marriage.

Moreover, though I don't think that the U.S. Supreme Court ought to interpret the U.S. Constitution as mandating recognition of same-sex marriages, I don't see a need even for a narrow constitutional amendment that would preclude such an outcome -- it just seems to me highly unlikely that the U.S. Supreme Court will reach such a decision, at least any time in the next few decades. (I support recognition of same-sex marriages for policy reasons, but I think it should be done through the political process, for many of the reasons that others have discussed at great length elsewhere.)

Likewise, unless I'm mistaken, this was a common argument of many defenders of Lawrence v. Texas and critics of the FMA: (1) There's no real likelihood that the U.S. Supreme Court would mandate recognition of same-sex marriage any time soon. (2) People who are skeptical about the recognition of same-sex marriage thus need not be worried about the implications of Lawrence or eager to enact the FMA. (3) The same-sex marriage debate ought to just percolate at the state level, with no need for federal intervention through the amendment process and no real risk of federal intervention through a U.S. Supreme Court Goodridge-like decision.

Yet now Democratic National Committee chairman Howard Dean says this:

Statement by Howard Dean on the New York Court of Appeals Ruling on Same-Sex Marriage ...

WASHINGTON, July 6 /U.S. Newswire/ -- Democratic National Committee Chairman Howard Dean today issued the following statement in response to the decision by the New York Court of Appeals that the state constitution does not guarantee the right to marriage for same-sex couples, but that the state legislature could provide this:

"As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity. And we must respect the right of every family to live in dignity with equal rights, responsibilities and protections under the law. Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.

"As that essential process moves forward, it is up to the State legislature to act to protect the equal rights of every New Yorker and for the debate on how to ensure those rights to proceed without the rancor and divisiveness that too often surrounds this issue."

Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"? Does it mean that the sitting Justices would be acting in an "outdated and bigoted" way by not interpreting the U.S. Constitution as mandating the recognition of same-sex marriage? Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result? Or does Dean believe that the New York court's interpretation of the New York Constitution was wrong, but the U.S. Supreme Court's similar interpretation of the U.S. Constitution would be proper? (Such a theory is certainly possible, but I just wonder whether this is indeed Dean's view.)

I realize that many people might welcome a Supreme Court decision mandating recognition of same-sex marriage. It justs seems to me contrary to the predictions that I'd heard from many sources about the unlikelihood that the U.S. Supreme Court would take such a view.

39 Comments
Cut Out the Rancor and Divisiveness, You Bigots:

Here's the Democratic National Committee's press release about the New York same-sex marriage decision:

WASHINGTON, July 6 /U.S. Newswire/ -- Democratic National Committee Chairman Howard Dean today issued the following statement in response to the decision by the New York Court of Appeals that the state constitution does not guarantee the right to marriage for same-sex couples, but that the state legislature could provide this:

"As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity. And we must respect the right of every family to live in dignity with equal rights, responsibilities and protections under the law. Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.

"As that essential process moves forward, it is up to the State legislature to act to protect the equal rights of every New Yorker and for the debate on how to ensure those rights to proceed without the rancor and divisiveness that too often surrounds this issue."

Commenter Max Hailperin makes a good point: Isn't it a bit odd to condemn (whether or not soundly) the New York Court of Appeals' decision as relying on "outdated and bigoted notions" and then urge that the coming legislative debate "proceed without the rancor and divisiveness that too often surrounds this issue"?

26 Comments
Usage and Marriage:

One thing that perplexes me about some (not all) usage arguments it their insistence on assigning One True Inherent Meaning to a particular word. "Ten times lower than," the argument goes, is wrong:

The words "times" refers to multiplication. Ten times a number is exactly that. Your usage is simply wrong. Your meaning therefore is vague and the sentence plainly ridiculous. It cannot be. Such usage indicates an inability to think clearly. You are wrong.

Lots of "cannot"'s and "wrong"'s, but it all rests on the assertion that "times" must refer to multiplication and only multiplication. Yet the word "times," as the dictionary shows, has lots of meanings. That it means multiplication in some situation doesn't mean that it somehow must inherently mean that everywhere. (Of course, one could argue that using it to mean something else may be confusing; that's a separate argument, which I've engaged elsewhere on the merits -- here I speak only of the One True Inherent Meaning argument.)

The same arises, I think, in some (again, not all) arguments against same-sex marriage (or for that matter against "unnatural sex"): Marriage is inherently about one thing, namely procreation, and therefore same-sex marriage is somehow inherently a violation of the fundamental nature of marriage:

Marriage used to exist for one reason. It was a contract between a man and a woman. The woman promised the man that any child she had would be from his DNA, the man promised to help raise and protect the children and to provide for the family. That was it. It wasn't about "love" or "acceptance" it was a financial contract. That's why at one time brides had to have dowries, to basically purchase their husbands, or the husband might purchase the bride, depending on the culture. (basically its built out of the inheritance rights.)

Ist true, that now with most work not requiring a lot of physical strength and endurance most women can do as well as the average man in making money, but that doesn't change the social impacts of not having a mother and a father while growing up, and sadly the "free love" of the 60's has caused to many people to forget that important part of the marriage contract.

So to me being against "same-sex" marriage, has nothing to do with bigotry. It has to do with understanding the cultural realities that created the sacrament of marriage, and the pure evil and cultural nihilism required to attempt to mutate that contract simply to force acceptance of homosexuality.

If one is really looking at what marriage "used to" be as a guide to what it must be, one must also consider that marriage often used to be a contract between a man and several women, or more likely (as the commenter I quote above acknowledges) a contract between a man and several women's fathers. But, in any event, for centuries marriage has also often been about love, about company in old age, about emotional tranquility, about sexual hygiene, and more.

I would think that this capacity of marriage to serve the other valuable functions is a sign of the strength of marriage, not something to be minimized or condemned. We wouldn't find it repulsive when post-menopausal women marry. We wouldn't find it a sign of "pure evil and cultural nihilism." Rather, we'd dance at their weddings, and appreciate the value of the marriage both for the parties and for society. Same when we see the marriage of people whom we know to be infertile, either because of disease or because of deliberate choice. Such a marriage is an occasion for joy, not contempt or concern about the erosion of the One True Inherent Nature Of Marriage.

Once we acknowledge that marriage can therefore have many functions, what's so "pure[ly] evil and cultural[ly] nihilis[tic]" about extending to marriage to couples who are unable to reproduce because of their gender, rather than because of their age or because of some medical condition? Of course, one could make other criticisms of same-sex marriage. I'm ultimately unpersuaded by these criticisms; but at least many of those criticisms focus on plausible speculations about actual effects, rather than on the supposed One True Purpose of an institution that -- like many successful human institutions -- serves many purposes.

84 Comments
Back to Natural Law and One True Inherent Purpose:

A commenter on the Usage and Marriage thread perfectly illustrated what I see as the One True Inherent Meaning error as applied to sexual practices. Someone else had written, "I think that gay sex is in fact natural for gay people. Therefore, I think that gay sex, and gay marriage, would not violate natural law." The commenter responded, "You are simply wrong based on human biology. Tab P goes into slot V not slot B."

Well, tab P goes into slot V, except when it doesn't. My guess is that, as a purely descriptive matter, tab P goes into the P-owner's hand many more times, on average, than it goes into slot V. If the most common use (i.e., the norm) defines the One True Inherent Use, then any sex other than masturbation is unnatural.

Ah, the commenter might respond, but that's not the purpose of the penis. The purpose of the penis, either in the sense of what its biological function is, or in the sense of how God designed it (I don't know the commenter's philosophy, so I'm not sure which he'd focus on), is to be inserted into a vagina so as to procreate.

But biology doesn't have "purposes," except in a metaphorical sense. Biology has developed the penis into a multi-functioned organ — it can be used for urination, for sexual pleasure, for emotional bonding, and for reproduction (I list these in what I guess to be decreasing order of actual frequency of use). Likewise for the multi-functioned vagina, though replacing urination with delivery of babies. More broadly, the sexual act is likewise a multi-functioned act. Likewise, biology has developed the mouth into a stunningly multi-functioned organ: It can be used for (among other things) breathing, communicating, consuming sustenance-producing substances, tasting substances to see whether they are wholesome, expelling vomit, kissing, licking stamps, and at least four different kinds of production of pleasure in oneself and others — singing, eating tasty food, stimulating others' nongenital erogenous zones, and stimulating others' genitals.

The anus is a less multi-functioned organ. Still, it can be used not just for elimination of wastes, but also for prostate exams, for gynecological exams, for the administration of medicine to people (often babies) who can't easily keep it down when the medicine is administered orally, and for the relatively accurate determination of body temperature. The latter four functions are of course artifacts of modern medicine, but I doubt that any of us would condemn them as violations of natural law, especially since learning, thinking, and developing new processes is natural for humans. Likewise, the anus can be used for sexual pleasure, and has been used that way by humans for millennia (and is used that way by some animals). Why then treat the anus, the mouth, or the penis as having One True Inherent Purpose rather than recognizing that they can be used in multiple ways, each of which is fully consistent with our biology.

Likewise if one sees the human being as part of God's design, and tries to deduce proper conduct from such design. (I set aside the separate argument that proper conduct should be deduced from supposedly authoritative religious works, such as the Bible — that's not the argument I'm responding to here.) God seems to have designed the human body in such a way that the penis, the mouth, and the anus can be used in lots of different ways; why should we infer, simply from the fact that one use (penile-vaginal sex leading to reproduction) is so important, that it's the One True Proper Use of genitalia? Likewise, God has designed humans in a way that allows some of them to be attracted to members of their own sex; even if you believe that this preference isn't innate, but is caused in part by upbringing or by personal choice, it's clear that the possibility of this preference is indeed present in humans (and, as I said, other animals). This too casts doubt on the theory that penises or the sexual act have One True Inherent Purpose or One True Inherent Mode Of Employment.

Words can have many functions (in the sense of many meanings). Institutions, like marriage, can have many functions. Parts of the body can have many functions. Human practices can have many functions. One can certainly argue that some functions are beneficial and some are harmful. But I see little reason to assume that there can only be one true inherent metaphysical natural function, or to infer that just because one function is very important, all other possible functions are improper or violations of natural (or linguistic) law.

I also commented on the broader "unnaturalness" argument three years ago, here.

114 Comments
I Don't Think That Word Means What You Think It Means:

A commenter writes:

[H]omosexuality is not natural in that it clearly functions against the survival of the species.

I've heard versions of this article before, so I thought I'd pass along a few reactions.

1. To begin with, I take it that the commenter isn't asserting that tolerating homosexuality (or recognizing same-sex marriage) actually jeopardizes the survival of the species. The overwhelming majority of people seem hardwired to be heterosexual, at least when opposite-sex partners are available. There's some malleability of sexual practices -- bisexuals, for instance, might be movable towards focusing more on heterosexual relationships or towards focusing more on homosexual relationships. But there seems little reason to think that even total equal treatment of homosexuals and heterosexuals would actually cause the species to die out.

2. The claim must therefore be that homosexuality is not natural in that (a) it diminishes the birth rate, or (b) if everyone were homosexual, the species would die out (the theory being, I take it, that artificial insemination would be cumbersome and rare enough that it wouldn't compensate for the problem).

Yet this is very far from any normal definition of "natural." Infertility is natural, even though it satisfies both (a) and (b). People's desire for some time free of the burdens of childrearing is, as best I can tell, quite natural (as is the desire for pleasure more broadly). Yet it too satisfies both (a) and (b); in fact, I suspect that this is responsible for declining birth rates far more than is the toleration of homosexuality.

3. More broadly, I agree that the natural world has created, through the process of natural selection, organisms that tend to be successful at reproducing themselves. But this doesn't mean that any behavior traits that reduce reproduction (or that, if universal, would eliminate reproduction) are unnatural.

4. Finally, to my knowledge it's not clear that the incidence of some amount of homosexuality diminishes the overall societal birth rate -- in fact, if strongly homosexual orientation is genetically linked, that's reason to think that those genes carry some reproductive advantage to gene carriers, or at least have little reproductive cost. I'm told that there's a hot scientific debate about this, and I'd be delighted if those who know something about the debate can speak to this in the comments. But my point is simply that observable conditions (whether sickle-cell anemia, menopause, or homosexuality) that seem to decrease people's aggregate reproductive fitness may through indirect channels actually increase aggregate reproductive fitness; and we should be careful about just assuming otherwise, especially when the condition seems to be genetically linked.

87 Comments