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The Further Misadventures of Warmed-Over Natural Law Arguments

September 25th, 2010 2 comments

I’ve spent some time going through the amicus appellate brief filed by Robert P. George et al. in the Prop 8 case. In a couple of pieces I posted a few months ago, I criticized George’s warmed-over natural law ideas, which amount to little more than convenient sophistry in defense of his preferred outcomes (including the exclusion of gay and lesbian couples from marriage.)

Nonetheless, this short and pointed amicus brief is clear and effective on its central point: We need a definition of marriage, and that definition has to be provided by the legislature (or, in the case of Prop 8, by the people). Without such a definition, everyone has a claim to be included, and there’s no legitimate basis for excluding other sorts of unions, including polygamous ones or relations between adult kin. And this definition inescapably takes in a moral dimension, as it inevitably must: What are we signaling with marriage? What is its normative, prescriptive content?

But it’s a long way from asking those vital questions to getting the answers that George et al. hope the appellate court to reach, and the argument simply doesn’t hold together. First, it’s too simple to state, as the authors do, that we have a clear definition of marriage to start (“logically prior,” as they say) and that we can then raise constitutional issues only in the context of that agreed-upon definition.

By that clinical way of considering the issue, we’d rarely be able to declare the exclusion of any group unconstitutional. So if marriage really is tied to procreation and the best interests of children (as the authors state, but in a more sophisticated way than usual), then it presumably would be constitutionally permissible to exclude women over a certain age (say, 65 for women; by the logic of this argument, we wouldn’t care about the sex discrimination involved). The authors attempt to avoid this conclusion by pointing to the natural-law-heavy assertion that men and women unite in a unique way, but why is that union important to marriage if it can’t produce children (since marriage is, again, mostly about children)? In the end, George’s natural law biases return to their moorings.

No, it’s more complicated than that: The meanings (not meaning, singular) of marriage are complex,  and subject to constant reconstruction and challenge, especially at certain watershed moments. We’re in one now. And it’s fair to say, as the authors do, that the political process has a role to play in this on-going definitional process; to that extent, the marriage equality debate has been useful to a collective consideration of the broader questions about the purposes and meanings of marriage.

But that doesn’t mean that the courts have no role to play in ensuring that those definitions are not crafted in a way that ensures the unequal treatment of certain groups of people. And, as it turns, out, the supposed clarity that George et al. find in the purpose of marriage is really just a convenient way to fence out same-sex couples. It’s obvious from what they don’t say. For example, they overlook the inconvenient fact that adult friends can marry, as long as they’re of the opposite sex. But surely such non-procreative, non-sexual unions are inimical to the purposes of marriage, as they’ve defined them. Why don’t they “weaken the links between marriage and procreation,” which the authors fear that sanctioning same-sex marriages would do?

This brief is better than most on the anti-equality side, principally because it clinically eviscerates the argument that the state should stay out of morality in creating marriage laws. Doing so would be impossible, perhaps even incoherent. But its own positive arguments for morality stand revealed as just another way to define marriage to exclude same-sex couples only – not the old, the infertile, or the non-sexual.

I’m not done. The authors also simply assert that extending marriage to same-sex couples would “convey that marriage is fundamentally about adults’ emotional unions – not bodily union or children….”

Really? As for “bodily unions,” we can see the natural law argument peeking through – and this same argument would, by the way, exclude deliberately non-procreative sexual relations between opposite-sex, married people, as well as all sex between a “whole” and a seriously disabled person (who lacks not only procreative capacity but the “equipment” needed for the task); the latter, according to their theory, shouldn’t be allowed to marry, either. But don’t expect to hear them arguing against such unions – unless the couple also happens to be gay.

As for children, we have yet another case of the anti-equality forces completely overlooking the welfare of the children in families headed by same-sex couples. But these authors go further, and overlook the very existence of these children – after all, the union of their parents is about their “emotions,” not about their kids. It’s quite apparent that none of the authors has spent any time around our families.

In short, there’s no principled way of excluding only our unions from the right to marry. It’s precisely for that reason that courts have come to recognize that what really lies at the bottom of the opposition is a kind of natural law argument that, on the most basic level, reduces to: “Ick!”

“View Bob McDonnell With Alarm!” (E-I-E-I-O)

April 7th, 2010 No comments

Let’s face it: Virginia Governor Bob McDonnell is an inept head of state who can’t even manage to keep his culture warrior pants neatly pressed. For anyone who’s been paying attention, he’s already done enough to disqualify himself from any Presidential ambitions he’s widely thought to entertain.

First, there was the embarrassing imbroglio over gay rights, when he had to act to quell a public riot over his Attorney General’s “request” to the states’ universities that they rescind any non-discrimination policies protecting gays and lesbians. Ken Cuccinelli’s AG opinion had been given whiskey courage by McDonnell’s own “guess the missing words” Executive Order that had promised not to discriminate on almost every conceivable basis — except sexual orientation. But when McDonnell faced the heat over Cuccinelli’s tone-deaf follow-up, he flamed out spectacularly, issuing a strongly worded “Executive Directive” that did protect against sexual orientation discrimination in state government, citing a number of legal sources he’d somehow missed in putting forth his earlier Order. The full story is here.

At the time, I wrote that McDonnell was an especially wimpy kind of culture warrior: One who believed in all sorts of natural law piffle about homosexuality, but didn’t have the courage of his convictions, when challenged. Today, he’s provided Exhibits B through about ZZ in support of my point. It turns out that sometime last week he’d issued some kind of play-to-the-Dixie-base proclamation that April was to be Confederate History Month. Unless April suddenly runs for only about two days, though, it seems like there’d be some time in that month to consider the role of, oh, slavery in the Civil War and the confederacy. Instead, silence on that small detail, in favor of this gush: It’s important to “understand the sacrifices of the Confederate leaders, soldiers and citizens during the period of the Civil War, and to recognize how our history has led to our present.”1

When initially questioned on the omission, McDonnell, typically, made matters worse with this read-it-to-believe-it statement:

McDonnell said he did not include a reference to slavery because “there were any number of aspects to that conflict between the states. Obviously, it involved slavery. It involved other issues. But I focused on the ones I thought were most significant for Virginia.”

It “involved” slavery? And that wasn’t one of the most significant issues “for Virginia”? Translation: It wasn’t one of the issues that the base wanted him to focus on, and he thought he could slip the Proclamation through. But it didn’t work. By today, the outrage — now reinforced by this inane ‘explanation’ — had reached a level eerily reminiscent of what had whacked him after GayGate. And again, McDonnell apologized (caved, backed down, went into pillbug protective mode) and wrote a brand new Proclamation that prominently mentioned slavery. As with the Executive Directive, you can’t fault the statement on content, even though we’re now more than a week into the month that’s being proclaimed:

Whereas, it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history….

So, here’s the disturbing pattern that’s emerged: McDonnell does something that he thinks will energize “the base” but doesn’t stop to consider that every other group then wants his head on a pike. Once they show up at the statehouse, complete with flaming torches and pitchforks, he chuckles over the silly misunderstanding, issues an apology, and tells them to return to their homes.

Didn’t he run on a platform of fiscal responsibility and competitiveness? Bob, forget about your incinerated Presidential aspirations and stick to basics for a few years.

  1. Wait! Our history has led to our present?! Why didn’t I think of that?

Tearing Down Robert P. George’s Scaffold (Part Two)

December 24th, 2009 1 comment

I’d planned on doing another longish post, continuing to take apart Robert George’s natural law arguments for “traditional marriage.” But shortly after I entered my first post on George, Andrew Sullivan took effective aim at some of the central problems I’d planned on discussing. There’s no sense repeating what he said, but I do want to add to the dialogue with a few observations, some of which relate directly to Sullivan’s points. Much of what follows is borrowed from a longer academic article I wrote ten years ago. It’s amazing how much of it applies to George’s arguments, underscoring the point that there’s nothing new here.

First, the natural law argument is driven by assumptions that can hardly be called the neutral products of pure reason. (Partly because, in my view, there’s no such thing.) The linchpin of his seemingly complex defense of traditional marriage is that one of the central “goods” of marriage is its union of the two sexes, which are naturally complementary, in the procreative act. And gay couples can’t achieve this “good” and therefore, it (supposedly) follows, shouldn’t be allowed to marry. Nor should male-female married couples engage in any sexual activity that isn’t procreative, unless such activities are instrumentally related to the procreative act. So: foreplay, yes; contracepted sex, no — because such sex is, by definition, not open to procreative possibility.

This is weirdly restrictive, and at odds with reality. Plenty of opposite-sex couples (legally married or not) make themselves more sexually available and attractive to each other because some or most of their sexual activity can’t and doesn’t result in procreation. Instead, it cements their mutual love, affection, and friendship (if they’re lucky). Friendship has no place in George’s definition of marriage, but his disaggregation of the lives of actual people into what I might call “marriage-related activities” (sex, but only of a certain sort) and “other” (like friendship) is an abstraction that most couples won’t find descriptive of their lives. George should try reading Savage Love for a few weeks.

George would of course reply to my suggestion that the state might not want to police the activities of (at least most of) Savage’s readers, but that it must continue to send out a strong signal about marriage. What signal, though? That marriage is for procreation only? We don’t have to read Savage, or talk about infertility, to know that this isn’t true today, and never was. And to the extent it’s about something else — which George concedes, in talking about the state’s interest in preferring the institution that supports families — the limits of George’s views become apparent. Because then the state should consider all kinds of issues, including: whether and how extensively to privilege marriage; who should be able to marry; and how to support all families (and people).

Natural law arguments can perhaps provide some descriptive insights, but can’t and should not direct public policy. In my earlier article, I sketched out a more appealing, Rawlsian (and closer to reality) approach to the issue of access to marriage. The comments were focused on marriage equality, but they apply more generally. I’ll close with this public argument:

Natural law – even if we could all agree as to what it says – should not govern legal issues….[T]here is a danger in relying exclusively on some comprehensive doctrine of morality. [I]n  The Idea of Public Reason Revisited, Rawls sets forth a workable and plausible model of how a democratic society should decide difficult political issues. The terms of public reason require adherence to a basic principle of reciprocity: “Citizens are reasonable when, viewing one another as free and equal in a system of social cooperation over generations, they… offer one another fair terms of cooperation according to what they consider the most reasonable conception of political justice.”

[T]his approach demands a certain modesty. One’s own religious or secular moral views, while relevant to deciding issues of political rights and justice, cannot be wholly relied upon, because they are too broad. The narrower issue is whether the outcome considered is true to “the principles and values of the family of liberal political conceptions of justice.” These are peculiarly public matters, so that the comprehensive moral or religious doctrine to which one subscribes should be invoked only if supported by “properly public reasons.”

In [the same-sex marriage context], the state’s interest is seen as maintaining the family “in a form that is just,” as well as “arranging for rearing and educating children, and … public health generally.” These interests, of course, are in thrall to the political society’s overall imperative of “maintaining itself and its institutions and culture over generations.” Thus, any restriction on the form of the family would have to be justified by its negative impact on “the orderly  reproduction of society over time[,]” and not by “religious or comprehensive moral doctrines” which are “improperly specified.”

This still seems right to me.

Tearing Down Robert P. George’s Scaffold (Part One)

December 23rd, 2009 9 comments

The puff piece on Robert P. George in last Sunday’s NY Times Magazine was one of the more infuriating things I’ve passed my eyes over in some time. At many points I found myself wishing for the kind of critical perspective that a similar, personality-based piece would have gotten in, say, the New Yorker or the Atlantic. Instead, David Kirkpatrick’s article was a weird mixture of amanuensis-like reporting of George’s point of view and unexpected instances of the writer’s occasional, startling snarkiness at his subject. (Example: “I met George 20 years ago, when I was a Prince­ton student and he was praying for tenure.”) There was so much to dig into, but Kirkpatrick barely lifted a spade.

And surprisingly, still there’s been but little written in opposition to the positions that George put forward. (Here‘s one game effort at deconstructing his arguments, from Kathleen Reeves.) But there’s so much wrong with what he’s saying that I can’t sit by idly and let this go unanswered. It’s clear that George is providing an intellectual scaffold to prop up a host of right-wing views and talking points. But the support he provides is rickety.

So, as my last serious work before taking a short Christmas break, I’ll have a go at George’s views (with a focus on marriage) and their intellectual pedigree. This will require more than one post.

Let’s start with the purported distinction between Humeans and Aristotelians that George (via Kirkpatrick) describes, and that is vital to his world-view. After setting forth Hume’s view that the emotions are the seat of decision-making, and Aristotle’s preference for an objective moral order that  can be known through the rational mind, George casts himself as a neo-Aristotelian whose mission is to restore the primacy of reason to moral (and political) decision-making. For George, it’s one or the other: emotions or reason.

Unfortunately, this simple “either-or” disregards increasingly well-accepted findings from the field of neuroscience. If you’ve never read Antonio Damasio’s ground-breaking yet accessible work, Descartes’ Error, promise yourself to correct this omission in 2010. Damasio’s work with brain-injured patients showed this: Those whose emotional capacities had been shut down could not make rational decisions. It turns out that we need emotions to bring our otherwise potentially endless ratiocination to some kind of conclusion — for us to get up and do something. The always-curious David Brooks further popularized this insight in a column last year:

Over the past several years, the momentum has shifted away from hard-core materialism. The brain seems less like a cold machine. It does not operate like a computer. Instead, meaning, belief and consciousness seem to emerge mysteriously from idiosyncratic networks of neural firings. Those squishy things called emotions play a gigantic role in all forms of thinking. Love is vital to brain development.

[P]eople seem to have deep instincts for fairness, empathy and attachment.

So this Aristotelian-Cartesian idea that truth can be known purely through reason is so yesterday.1 The purportedly syllogistic logic that leads George to his definition of marriage (one that — surprise! — ends up walling out same-sex couples) is driven by complex emotions that neither George nor sophisticated neuroscientists as yet fully understand.

This isn’t to give up the project of judging arguments grounded in logic and reason, but to provide context for them: The arguments we choose to make, and the ways we present them, aren’t the products of pure reason, because…there’s no such thing. And once we get into the specifics of George’s natural-law position on marriage — which by the way is nothing new — we can see how his complex construction is anchored in a biological, reductive model of humanity  that is hardly the product of “reason” at all. It’s an article of emotion or of faith; take your pick, because they amount to the same thing.

In my next post, I’ll pursue this natural law argument further.

Update: The second post on this topic, which will address Andrew Sullivan’s response to George as well as George’s natural law arguments, will be up early tomorrow.

  1. But  yesterday is, of course, where George proudly abides. From the Kirkpatrick piece: “George’s admirers say he is revitalizing a strain of Catholic natural-law thinking that goes back to St. Thomas Aquinas.”