We can surely say now that we've entered an era of definitively more accepting attitudes with respect to gay rights. Each victory won, such as the recent referendum in Ireland, seems simultaneously a harbinger for yet another somewhere else. Indeed, here in the United States the Supreme Court seems set to issue their much anticipated decision on the question whether states have a constitutional right to reject gay marriage. In the wake of this social tidal wave, the crucible of the modern gay rights movement is turning out to be something decidedly anticlimactic.
This is the argument that conferring upon same-sex couples all (or most) of the same rights opposite-sex couples enjoy, but designating them a name other than "marriage"--e.g., the euphemistic "civil union"--is non-discriminatory. A bolder version of this argument accepts that such a policy discriminates; the rub is that it is supposedly of the ethically unobjectionable sort. The following quote, part of an op-ed Reverend Michael Jensen wrote following Ireland's unprecedented vote, takes this position:
In fact, it may be the case that offering supposedly "equal" treatment is incoherent, as it is in this case. It is crucial to notice that the proposed revision of marriage laws involves exactly that: a revision of marriage. In order to offer the status of marriage to couples of the same sex, the very meaning of marriage has to be changed. In which case, what same-sex couples will have will not be the same as what differently sexed couples now have.
Call this the conceptual incoherency objection to marriage equality. The upshot, those who employ this argument claim, is that marriage equality is not possible without eviscerating, and making henceforth unrecognizable, marriage as we know it. If we go through with it, marriage becomes a sort of legalized depravity where "the central reality is my emotional choice."
Notice Jensen's casual marginalization of same-sex couples here. Histrionics aside, the incoherency objection rings true--albeit trivially--in one sense: as distinct conceptions of marriage, they may of course never refer to a singular notion. But this is a minutia which need not preclude them from sharing certain ideals, or desiring marriage for broadly assimilable reasons, whatever the alleged difference. A dispassionate judge might decide, for instance, that a revamped legal definition would be better off denominating gay and non-gay unions by those less tendentious measures--not just because of their felt rightness, but also in the interest of avoiding inadvertently institutionalizing discrimination.
This risk is not speculative. Unlike definitions which are mere academic (e.g., a mathematical postulate) or lexicographical stipulations, distinctions which are coded into legal taxonomy may sometimes convey a moral authority of which it can take speakers of a language several lifetimes to disabuse. A manifestation of this tendency familiar to many is when someone responds to the question why is X wrong (or morally reprehensible or unjust, etc.) by rejoining simply that it's because X is illegal (or not legally recognized). So the threat is real, even if a legal definition of marriage explicitly censured or even criminalized the discrimination of gay couples. For many people, our current laws and traditions justify their antipathy.
Clearly, then, even innocent attempts to precisify legalese have the potential to catalyze an entire people's slow but certain descent--though more quickly in those constitutionally predisposed--into the pits of blissful ignorance, and reify what was promised to be simply an exercise in classification. Instead of exploiting legal definitions to draw out our most obvious, yet least material, differences, why not make this an opportunity to highlight the free choices we only, as humans blessed with the faculty of reason, are able to purposefully make, with something like sincerity of intent being the only criterion? A disanalogy expressing just this vision and its possibility exists, believe it or not. In the United States today, most noncitizens have the opportunity to become citizens, simply because they want to. But it wasn't always like this. Less than a century ago, racial restrictions in the naturalization process were explicitly permitted under the Constitution, until their abolishment in 1952 by an act of Congress.
It will become evident where gay and non-gay couples perhaps might converge once we consider a thread that invariably weaves its way through arguments that appeal to intuitions of incoherency. Here in the United States, we saw it surface in late April in oral arguments delivered to the Supreme Court, in a series of cases which are known now as Obergefell v. Hodges. Representing the states wishing to maintain their present ban of gay marriage, Mr. Bursch of Michigan expostulated that marriage "as such" is an institution that is designed to "forever link children with their biological mom and dad when that's possible. ...Even people who come into a marriage thinking they don't want to have children often end up with children." So marriage equality and traditional marriage are conceptual opposites--i.e., unequals. Jensen also echoes this point:
As we now understand it, marriage is not merely the expression of a love people have for each other. It is, or is intended as, a life-long union between two people who exemplify the biological duality of the human race, with the openness to welcoming children into the world. Even when children do not arrive, the differentiated twoness of marriage indicates its inherent structure.
In order to appeal to conceptual incoherency as a principled basis for denying gay couples the status of marriage, one must be a consistent observer of its precepts. Two observations suffice to show the unlikelihood of any such sincerity. First, marriage is often desired even when a "traditional" couple has no intention to bear any children. Sometimes the possibility is even foreclosed, as when a member is infertile. Second, if the visual presentation of natural fecundity was truly what is at stake, we would expect marriage officials to spend a lot more time ascertaining the reproductive plans of marriage applicants, or deny them altogether of infertile couples. But they don't.
Further, the primacy of consanguinity, i.e. biological parenthood, asserted by marriage equality opponents presupposes that legalizing gay marriage will somehow undermine the veneration we currently reserve for our biological parents. But this is nonsense, both in theory and in practice. Practically, the view implies that some greater good will come of a child who is raised by their biological parents, which we will later thank them for. But there is just no evidence that backs up this claim.
Theoretically, that "biological duality" (with respect to family composition) ought to be a sort of gold standard of childrearing is a curious epistemic position to take. Let me explain. Consider that genetic tests "proving" parenthood are not required in most states as a condition for volunteering parentage for a newborn. Nor do most children demand that their parents prove this once they are sufficiently of age to issue such a demand, even though a child might reasonably question the biology of their assumed parents, owing to the possibility of their adoption or some alternative birth arrangement (due to infertility, say) or scenario (e.g., a cheating husband). For my part, I know of no one who has done this.I certainly don't plan on doing so, even though this means I won't know for certain if both my parents are biologically mine. But like most of my peers, I simply carry on with life--in part, I'll be honest, due to my different-sex parents' complicity: they've never challenged me to challenge them to prove their parenthood. But I imagine most of my peers' parents are not unlike mine. So if questions about biology don't generally arise in a child with respect to parenthood, and different-sex parents don't generally care to prove it to them, why require different epistemic standards of same-sex couples? So far, the objection is that children are better off psychologically if they at least know it's possible that both their assumed parents are biologically theirs. But there is just (again) no evidence to support this claim. Might this be because it is always possible, whether one's parents are same-sex or different-sex, that neither one is a biological parent?
Let me suggest an alternative, non-epistemic view of parenthood (as far as consanguinity is concerned). When it comes to assigning parenthood, what the evidence seems to show is that we make this determination by appreciating the unique responsibilities that those figures we in fact call "mom" or "dad" voluntarily assume in our lives. As far as I know, this takes place long before we can even vocalize "mom" or "dad," let alone fathom how much better off we would be if we knew that our parents were biologically ours. Who we consider a parent, for those of us not retroactively misdirected by prejudice and "tradition," is just whoever plays that role most convincingly, or well, in our lives. Experiential--not epistemic--factors such as proximity, emotional attachment, and one's felt answerability to the assumed parents, clearly prevail in a child's assignment of parenthood.
Pace Jensen and Bursch, our experiences show that parenthood is putative in the vast majority of cases, based on our subconscious assessment of such factors as proximity, emotional attachment, and one's felt answerability to the assumed parent.
In his final opus, which was invidiously (but appropriately) titled The Anti-Christ, Nietzsche wrote, "it is only those who are at the bottom who seek their salvation in it." The relevance of this statement to the Supreme Court verdict presumed to be looming before us lies in the fact that the functional ability of gay couples to be decent parents is currently denied by thirteen states too many for the "bottom" reasons--which often mask religious motives--that I've touched on in this article. Practices and institutions borne originally from ignorance now seek an incontrovertibility and dignity that only a legislative act can confer.
Perhaps the coming week will bring forth a happy result for marriage equality advocates. Note, though, that an outright victory is not needed; we would be in a salutary position to ultimately prevail if the justices decide to simply send the case back to the appellate court whose ruling against the gay couples in Obergefell led the Supreme Court to consider its merits.
I am hopeful for either outcome.
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