Tuesday, August 04, 2009

Sullivan v. George on Gay Marriage & the Power of Government's Symbolic Endorsements:

First is Robert P. George's op ed in the Wall Street Journal arguing against gay marriage. And second is Andrew Sullivan's response.

From George:

If marriage is redefined, its connection to organic bodily union—and thus to procreation—will be undermined. It will increasingly be understood as an emotional union for the sake of adult satisfaction that is served by mutually agreeable sexual play. But there is no reason that primarily emotional unions like friendships should be permanent, exclusive, limited to two, or legally regulated at all. Thus, there will remain no principled basis for upholding marital norms like monogamy.

And Sullivan:

But if non-procreative sex can consummate a heterosexual marriage, then why not a homosexual one? I covered all this at length in Virtually Normal, and it comes down in the end to an assertion that heterosexuality be privileged in civil law because it is the norm. Buried behind this is an unscientific notion - derived from Aquinas - that the universe is somehow perfectly gendered into two opposite and complementary halves. No one with any knowledge of contemporary biology or evolution could agree with this. And if Aquinas were alive today, he wouldn't either. He was interested in truth as the source of doctrine; not doctrine as the source of truth.

This passage in Sullivan's post may be a bit unfair to George:

It also seems to me to be important to ask George what he proposes should be available to gay couples. Does he believe that we should be able to leave property to one another without other family members trumping us? That we should be allowed to visit one another in hospital? That we should be treated as next-of-kin in medical or legal or custody or property tangles? Or granted the same tax status as straight married couples? These details matter to real people living actual lives, real people the GOP seems totally uninterested in addressing.

I suspect George would not want to prevent couples going through immensely complex legal hoops to secure as many of these rights as we can.

It's true that George, understandably, doesn't propose a policy for gay couples in his limited space op-ed. However, if I am not mistaken, elsewhere I think he has proposed/endorsed such. At least, his intellectual disciples Ryan T. Anderson and Sherif Girgis have in this piece written for The Witherspoon Institute, where George is a senior fellow:

[U]nions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.

I'll skirt whether this theoretical solution, in practice, could work and simply assume arguendo it would; gays, like two elderly nuns in a platonic civil union would be able to inherit and visit one another in hospitals just like married couples. Sullivan hones in on the theoretical real dilemma:

There is also, moreover, no positive social policy actually crafted for gay people in George's view. What does he believe we should do with our lives? Should we try to construct stable relationships - or not? In an era in which an entire generation was decimated by HIV, is it not conservative to seek greater stability and responsibility among gay citizens, by providing actual legal and social incentives for stabler lives? Alas, having studied George's work for years, I can tell you his social policy toward me and my kind. It is that gay people should be celibate, and if not celibate, invisible. But this much we know: gays in free countries are neither going to be celibate nor invisible for the foreseeable future. So what is George's prescription except quixotic when it isn't demotic?

Beneath the elegant philosophical language is a blunter message to George's gay fellow human beings: be straight or go away. And since when is that a practical option in the 21st century?

One thing that amazes me about this debate is how willing we are to argue over symbolism, even when tangible privileges/rights aren't at issue. As alluded, I know many believe that The Witherspoon Institute's proposed policy is unworkable in reality and that anything less than full marriage means gay couples receive fewer rights.

But what if, in principle, The Witherspoon Institute's policy proposal proved to be workable (work with me in this thought experiment -- don't wimp out by stating "it can't")?

Social conservatives may accuse gays of being fanatical for refusing anything short government endorsement of "marriage," even when they have all of the same privileges, rights and responsibilities (under a sexually platonic civil mechanism). However, the same charge can be leveled against Dr. George et al. His position asserts that a key purpose of government is to promote morality (not necessarily defined by the Bible or church dogma, but the natural law, which, coincidentally, perfectly parallels traditional biblical morality and church dogma of many conservative Jewish, Christian, Mormon and Muslim denominations). And that means it's okay for government to be nice to gay couples, allow them to enter into partnerships that grant them rights and whatnot. But it's not okay to give them these rights/privileges under a mechanism that might symbolically intimate gay sex is okay.

Likewise Dr. George believes there can be no political "right to do wrong" (and the Thomistic natural law can be quite demanding in its ethics). This means while, of course, it would be an unwise practical idea for government to make illegal EVERYTHING the natural law forbids -- for instance the natural law forbids male masturbation and virtually none of today's natural lawyers want government to pass an anti-masturbation statute -- they would stand against a law (especially a court decision) that held there is a specific "right" to do this. In effect, we have the same result (i.e., government doesn't criminalize masturbation). But the way we get there -- either government just leaves us alone without mentioning why or government affirmatively announces we have a specific right to masturbate, have sodomy, etc. -- makes all the difference.

I think this also explains some of the intense motivations that underlie Establishment Clause battles. Almost all reasonable folks on the Left and Right agree that government shouldn't be able to affirmatively harm, deny rights or privileges to someone on account of her religion. So we argue over whether government can post religious messages that may offend or make citizens feel like outsiders. "Under God?" Posting the Ten Commandments? What if one is an atheist or a polytheist? What if the shoe were on the other foot? What about "under Allah" or "under no God?" These are just words; they don't pick our pockets or break our legs anymore than majoritarian, conventional religious messages.

There is no real easy answer to these dilemmas. My proposal is true classical secular neutrality. Dr. George has argued -- and I agree -- that modern lefty liberal secularism is not neutral. The secular left indeed wants to inculcate its comprehensive moral systems as much as the religious right does.

However, libertarianism offers probably what is closest to true neutrality in a pluralistic world where we disagree over concepts of "the good." All laws impose morality. And libertarianism stands for the least amount of government, and consequently the least amount of government imposed morality. Moreover, the legally imposed moral rules that libertarians endorse -- that government should outlaw force, fraud and do little more -- also form a lowest common denominator of agreement among all sane people (that is liberals, conservatives and libertarians).

On the gay marriage issue, I argued using James Madison's Memorial and Remonstrance as an analogy here. On disputed issues of "the good" that fall outside of governments minimal purview of enforcing our rights to life, political liberty and property, government should just stay out of it and leave issues up to individuals and private groups.

That means privatize marriage, everyone gets that two person civil union for which The Witherspoon Institute argues and individuals and private groups, not government decides what is "marriage" just as they decide what is true "religion."

1 comment:

josil said...

"That means privatize marriage, everyone gets that two person civil union..." It seems completely arbitrary to stop at two person marriages. Under the libertarian banner I'd think polygamy would be entirely proper...unless you want the state to intervene...and you know where that leaves you.