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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!”

Prop 8: Airing the Proponents’ Arguments

June 17th, 2010 1 comment

In my just-posted column over at 365gay.com, I distill the closing arguments presented by the Prop 8 proponents. Hint: they’re not good. It’s mostly this: We don’t need evidence in order to exclude gays and lesbians from marriage. Everyone knows marriage is for procreation, and gays can’t do that (not on our own, anyway). And letting us in will “destabilize” the institution.

That’s really about it.

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.

DOJ Files Reply Brief in DOMA Case — Evidence of the Power of Outrage

August 17th, 2009 No comments

Today, the Obama Administration filed its reply brief in the California Smelt case, where gay couples have challenged the Defense of Marriage Act (“DOMA”). Let me start by giving away the punch line: It contains powerful statements on gay parenting and the weakness of the procreation argument that are likely to cause apoplexy in opponents of equality. This brief goes a long way towards undoing the legal and political damage that an earlier filing caused.

As you may recall, the Department of Justice’s first brief was in support of its motion to dismiss the couples’ claim, and generated disbelieving outrage (from me and many others, whom you can find referenced on my earlier post). The DOJ brief in that case made absurd and offensive arguments that, I wrote then, “seem to have been intended to set the course of judicial progress on gay rights back many years.”

Today’s brief, which you can find here, represents a significant step forward, and bears testimony to the power of strong but justified criticism.

First, what’s a reply brief? (Skip this paragraph if you don’t care.) It’s the last “salvo” in the flurry of briefs that a court sees before deciding a motion. In the case of a motion to dismiss, this means that the party seeking dismissal (here, the U.S.) first makes that motion, accompanied by a brief setting for its arguments that the case is without merit. The plaintiff then replies, attempting to refute these arguments, and urging the court to  allow the case to proceed. Then, typically (but not invariably), the moving party (again, the U.S.), then files a much shorter brief that responds, in a targeted way, to new arguments and to alleged misstatements by the other side — or just to have the last word on the contested legal issues. That’s the reply brief.

Here, short of withdrawing the motion to dismiss (which was almost certainly not going to happen), the Obama Administration essentially had three courses of action open to it: (1) Reiterate, defend, and refortify the initial arguments; (2) Decline to file a brief; or (3) File a brief that “walks back” from some of the rhetoric or arguments of the earlier brief, and rejects new arguments offered in support of dismissal. As you might expect, (3) is the best option — and that is what the Obama Administration did here.

In the short (seven page) brief,  DOJ starts by strongly urging dismissal on procedural grounds, stating that’s its wholly unnecessary for the court to reach the merits of the claim. This point was made, but with less conviction, in the earlier filing. Procedural dismissal would of course be best, as it would create no precedent potentially destructive to the cause of marriage equality.

The rest of the brief offers three very hopeful signals. First, there’s an unenthusiastic repeat of some (but not all) of the original arguments. Second, there is a direct statement that the Obama Administration believes DOMA is “discriminatory,” does not support it and urges its repeal. These are important statements, even though DOJ then states that it must defend validly enacted laws.

But it’s the third signal that’s the most encouraging, and potentially powerful. The DOJ takes on certain “intervenors” (interested third-parties who are given court leave to join the case so that otherwise unrepresented arguments will be made), who argued that DOMA’s support of opposite-sex only marriage is justified by the need to encourage procreation and the best setting for child-rearing. The Administration’s response is enough to reinstill a sense of hope, and warrants quoting in full:

Unlike the intervenors here, the government does not contend that there are legitimate government interests “in creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’ decision to define marriage as a union between one man and one woman. Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child  Welfare League of America have issued policies imposing restrictions on gay and lesbian parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.  Moreover, in Lawrence v. Texas, Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion — which, of course, is the prevailing law — because “the sterile and the elderly are permitted to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing, and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

Prepare for eruption of the right-wing volcanos.