Friday, June 25, 2004

Apples & Typewriters:

Whoever coined the phrase, “you can’t compare apples & oranges” should have been shot. That’s because when we make analogies in our logical arguments, this is precisely what we do. To compare “apples to apples” is to compare duplicates and that’s not what is done when we reason by analogy. (Lawyers, like philosophers, must deal with this issue because case-law involves reasoning by analogy. Extending past precedent to future analogies is what makes the legal system a mechanism for possible slippery slopes. This is what Eugene Volokh argues. Even though the slope is a logical fallacy—the slope can literally go on and on forever and swallow every rule as invalid, even all of the good ones—because our legal system is built upon reasoning by analogy, the slope is alive and well in our court cases and thus is something that we ought to be concerned about).

All analogies have distinctions—otherwise we would have duplicates—the question is how meaningful the distinctions are. And when we compare things that are otherwise distinguishable, even in a very meaningful way, we can always find similarities—the question is how meaningful the similarities are. That is, when you have, let's say three different things A, B, & C, no matter what they are, you can always find ways to analogize A to B, but distinguish it (them) from C, analogize B to C but distinguish it (them) from A, and on and on.

Let’s actually do apples v. oranges. Both are fruits. Both are roughly the same “baseball” size. Both have similar colors (one red—if we are talking about typical red apples, and one orange). An orange is a far better analogy to an apple than a “typewriter” would be (maybe that would be a better term of art, “you can’t compare apples to typewriters.”) But even a typewriter would be a better analogy to an apple than an apple would be to a piece of real estate (both apples & typewriters are pieces of personal property, while real estate is real property). But real estate would be a better analogy to an apple than a patent (because real estate and apples are both pieces of tangible property, while a patent is an intangible). A lemon would be a better analogy to an orange than an apple to an orange because lemons contain just about all apples' similaries to oranges, plus lemons are, like oranges but not apples, a citrus fruit.

We can see how reasoning and distinguishing by analogy can go on and on forever.

Now let’s take these same rules and apply them to something interesting. Rick Santorum invoked the slippery slope before the Lawrence verdict came down. He argued that if homosexuality must be okay then so must a whole host of parade of horribles—polygamy, incest, bestiality, etc. All of these things are distinguishable. The only thing that logically groups together these phenomena with homosexuality is that they have been frowned on by tradition. But so too have interracial couplings been condemned by tradition.

When the analogy between homosexuality is made to interracial couples, social conservatives argue that this insults “race” (and by the way, this is a different analogy than the comparison between homosexuality per se and race per se—the distinction there is that one involves a behavioral element the other doesn’t. That’s true. But interracial couplings equally involve a behavioral element as homosexual ones). But then these same social conservatives can compare homosexuality with incest, bestiality, and pedophilia, and homosexuals aren’t supposed to be insulted?

Or to take another set of comparisons: Homosexual, interracial, and pedophilic couples. We are dealing with the "wrong" gender, race, and age, respectively. Let’s also say that both the interracial and the pedophilic couples involve males & females so as to not make 2 things “wrong” with them. As with our past comparison, all three have been condemned by tradition. They have all also been tarred as unnatural, considered “sins,” and been made illegal. 1&2 can be distinguished from 3: The homosexual & the interracial example have all adults, the pedophile involves a child. 2&3 can be distinguished from 1—the pedophile & interracial couple are male/female, while the homosexual couple is male/male, etc., etc.

A social conservative would need to be able to make a meaningful analogy between the homosexual and pedophilic couple that distinguishes it from the interracial couple. I’d like to see them try because I can’t think of a way that this can be done that is not frought with error.

One might argue “nature”—but naturalistic arguments have also been made against interracial couples. One could say interracial couples don’t run afoul of the “male/female” order—but neither does a 30 year old man and a 10 year old girl couple! One could say that a homosexual couple, like the man/girl couple (or like a human and an animal), can’t breed, while the interracial couple can. But neither can infertile heterosexual couples breed (and a just as a pre-pubescent girl is naturally infertile, so too is a post-menopausal woman—thus it would seem equally “unnatural” for a post-menopausal woman to have sex as a pre-pubescent girl under this standard. And when does the pedophilic sex cease becoming "unnatural"? When the couple can breed, when the girl is like 13?).

The defining feature of “wrongness” for pedophilia is that it harms children. And that is wholly absent from adult homosexual relations. And it’s also absent from adult interracial couples. That would seem to be the element needed by our side to distinguish homosexuality from pedophilia and logically group it with interracial couples.

The two strongest analogies to homosexual couples, as I understand them, are to either interracial couples or infertile heterosexual couples. Of course the response can be made—“there are differences”…but there are differences that can be made with every analogy. The burden is on the other side to come forth with better analogies to homosexuality with meaningful similarities and lack of meaningful distinctions.

No comments: