Gay Marriage and Arguing Religious Points from Non-Religious Premises

One of the interesting aspects of the recent Connecticut Supreme Court case Kerrigan v. Commissioner of Public Health (Kerrigan) was the way that part of the argument against allowing gay marriage consisted of the religious doctrine that marriage is exclusively a relationship between one man and one woman and that this argument was attempted to be presented in non-religious terms. On the one hand it is tempting to brand such attempts as trojan horses which are entirely subterfuges designed to get particular religious views into the public discourse. But on the other hand, regardless of whether or not the argument is being presented entirely for religious reasons, it is the argument itself that must be considered rather than the motivations of the people putting forth the argument. In this particular case, the claims of the biological argument put forth by Patricia and Wesley Galloway in an amicus curiae brief and written into the dissenting opinion by Justice Peter Zarella clearly show some of the limits of attempts to argue for religious doctrine on the basis of non-religious premises.

In Kerrigan, the Connecticut Supreme Court overturned Connecticut's civil union statute because of its language explicitly defining marriage as the union between one man and one woman. Perhaps the most interesting thing about the case was the fact that some of the third parties filing amicus briefs argued on the basis of biology rather than religion that gay marriage was not part of the social, historical and legal traditions upon which US law is based. (This view was recently spotlighted in the New York Times article Using Biology, Not Religion, to Argue Against Same-Sex Marriage by Ray Rivera and Christine Stewart.) The secular argument argument put forth is perhaps most concisely expressed by Justice Zarella in his dissent. 

The latter conclusion [that marriage is defined exclusively as being between one man and one woman is inherently discriminatory against gays and lesbians] is based primarily on the majority’s unsupported assumptions that the essence of marriage is a loving, committed relationship between two adults and that the sole reason that marriage has been limited to one man and one woman is society’s moral disapproval of or irrational animus toward gay persons. Indeed, the majority fails, during the entire course of its page opinion, even to identify, much less to discuss, the actual purpose of the marriage laws, even though this is the first, critical step in any equal protection analysis. I conclude, to the contrary, that, because the long-standing, fundamental purpose of our marriage laws is to privilege and regulate procreative conduct, those laws do not classify on the basis of sexual orientation and that persons who wish to enter into a same sex marriage are not similarly situated to persons who wish to enter into a traditional marriage. The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. If the state no longer has an interest in the regulation of procreation, then that is a decision for the legislature or the people of the state and not this court. [Zarella, P., Dissenting Opinion in Kerrigan et. al. v. Commissioner of Public Health ]

It is tempting in some ways to simply dismiss this argument as sophistry of sorts, to claim that Zarella one of the religionists that the Islamic philosopher Abu Nasr al-Farabi would describe as ``convinced of the validity of their own religion beyond any doubt, hold the opinion that they should defend it before others, show it to be fair and free it of suspicion, and ward off their adversaries from it, by using any chance thing'' [al-Farabi, Abu Nasr, The Enumeration of the Sciences, tr. Najjar Fauzi, M. in Medieval Political Philosophy ed. Lerner, Ralph and Mahdi, Muhsin, p. 30.]. Such dialectic theologians, al-Farabi, says, ``would not disdain to use falsehood, sophistry, confounding, and contentiousness'' because they divide non-believers into two groups: enemies and the simple minded. With regards to enemies, ``it is admissible to use falsehood and sophistry to ward him off''' and with regards to the simple minded, ``it is admissible to use falsehood and sophistry to make man seek his well-being.'' And, to be fair, I am not altogether convinced that Justice Zarella might not belong in that general category of believers that would use any means necessary.

But on the other hand, I think there is some value in investigating Zarella's claim on its own merits. First, regardless of any motives that may or may not lie underneath the way that Zarella put forth the argument, whether it is true or not doesn't really depend on those motives but on the argument itself. While I will concede that there are times when motives do have something to add to a discussion of a particular topic, I am not convinced that this is one of those times. Second, I think that examining this particular argument illustrates something interesting about a topic I have touched on earlier, what methods (if any) are appropriate for a Christian to bring their values and beliefs into public discourse. (See the article An Argument for Allowing Religion to Influence the Secular State.) Consequently, I do not think it prudent to immediately lump Zarella in with the groups like the more fundamentalist intelligent design cabals that seeks to use intelligent design as a way to get young earth creationism into public schools.

So, let's examine Zarella's twin claims that ``the long-standing, fundamental purpose of our marriage laws is to privilege and regulate procreative conduct'' and that the ``ancient definition of marriage as the union of one man and one woman has its basis in biology.'' These two claims have similar shortcomings. They conflate the part with the whole in inflating one aspect of the traditional view of marriage into its sole purpose. They neglect that from the  biological and historical perspectives, the redefinition of marriage as between one man and one woman is a relatively late breaking idea in public discourse. They do not consider that marriage was a social understanding long before it was a legal arrangement and, consequently, the legalities of marriage will always trail the social understanding of marriage.

Through most of human existence, and even through most of human history, monogamy was relatively rare. Most societies were built on a polygamous social structure and, while some eras stood out for being predominantly monogamous, we can not realy say that biology teaches us us that marriage is the union of one man and one woman. At best, biology can teach us that marriage is the union of at least one man and at least one woman. The teaching that marriage is the union of one man and one woman would have to wait until various religions and schools of philosophy made popular the notion that the household built around a single man and a single woman was the atomic unit of society. But even then, procreation did not always play an essential role in the theology. For example, in the creation story in the second chapter of the book of Genesis states that woman was created as a helpmate for man to create a new unity without specifying that the purpose of that unity is reproduction. Consequently, it isn't clear that procreation is the sole or even the primary purpose of marriage so much as companionship.

But by the advent of Aristotle, who argued that the nuclear family was the atomic unit of the city precisely because it takes both man and woman to procreate, things had changed a bit. But even in Aristotle, procreation is not the sole purpose of marriage. For Aristotle, the household needs the unique natural talents of both men and women in order to prosper. While it is true that procreation is certainly an element of the relationship between husband and wife, it certainly is not clear that this is the purpose for which marriage regulations were created in ancient Greece. During this same era, Judaism certainly began to develop a consistent philosophy of the central role of family and, by the time Christianity arrived on the scene, it found itself the heir to two very strong natural law traditions that put procreation very close to the center of the marriage relationship. Consequently, we cannot unequivocally side with Justice Zarella that biology informs the ancient definition of marriage. It certainly did to some extent inasmuch as biology influenced the understanding of religion and philosophy of just what it meant to be human. But even there, biology does not put a quantitative limit on the understanding of marriage or even suggest that a marriage where procreation is not possible is not valid. Nor does the history of marriage suggest that laws concerning what it means to be married came about because of issues of procreation.

The other problem with Zarella's view is that in the modern era, procreation has long ceased to be tied to marriage. On the one hand, widespread use of birth control, and even voluntary sterility, has made procreation a chosen option rather than a probable outcome for married couples. At present, it is entirely unremarkable in most of the US for a married couple to never concieve. On the other hand, an increasing use of artificial means of conception has eliminated the need for man and woman to come together within sexual union at all in order to produce progeny. Not only are single parents unremarkable in this day and age but single parents who are not parents through sexual union are unremarkable. Consequently, we must conclude that western society has largely decided that reproduction is neither the exclusive domain of marriage nor the reason for which marriage exists.

The outcome of this is that Zarella will find few individuals who do not share his views that are convinced by his argument. The reason is simple. When attempting to convince the other justices of his view, he did not rely on that which is (a) self-evident, (b) in-evidence, or (c) the conclusion of a demonstration built on premises that fit one of those three criteria. Rather, Zarella began from an interpretation of history that was arguable at best and tried to impose the lessons of that history upon those who did not subscribe to his view. This is exactly the wrong way to go about bringing religion into public discourse and it is no surprise to me that Zarella was unable to convince the other justices of the Supreme Court of Connecticut.

To argue for the imposition of this or that religious belief in the public forum, the place to start is with premises that are accepted by all (or at least most). As mentioned above, in a country where it is thought by increasing numbers of people that it is both normal to be childless in marriage if one should so choose and normal to have children outside of the bounds of marriage, arguing that the biology of procreation is the primary purpose of marriage is going to fall flat. Consequently, someone who wants to make the argument against gay marriage needs a different starting point. Just what that starting point might be, I do not know. A culture whose unique identity began with a document declaring three inalienable rights of `life, liberty and the pursuit of happiness' does not seem to have a lot of room for opponents of gay marriage to bring a coherent argument into the public discourse. (For an argument about how US views of liberty bring about legal gay marriage as its end see Gay Marriage as One of the Many Ends of Modernism and as an Examination of the Tension Between Church and State.)

The best candidate I can think of is a long term project to put the family back at the center of society rather than the individual. This project would not start with arguing biology in court cases on individual rights. Rather, it would start with trying to change the way people look at society itself. If one could get the majority of Americans to view their families rather than themselves as the fundamental building block of society, then one would have room to argue for a specific definition of marriage that put concerns about procreation at the center of its purpose. But even then there is a problem. To argue that procreation is at the center of marriage does require the nuclear family to be the fundamental building block of society but it is not clear to me that the former necessarily follows from the latter. A family centered society is a precondition for the development of the argument but is not in and of itself sufficient to entail the necessity of the conclusion of the argument.

In the end, my advice to those who want to formulate public policy based on religious principles that only a minority of Americans share is to get busy educating the next generation. Before a nation is ready to accept a minority religious view, it must first have its collective mind changed on secular principles which lead to that same view. While admittedly this approach can be taken by extremists who don't really care about whether or not their views are true in the eyes of secularists, I think it will result in a more vigorous and honest public discourse if all the parties involved get the premises that actually underly their views out on the table for examination. An honest and open dialog is not only a good mechanism towards moving towards a better understanding of truth, it is also a good way to engage fellow citizens as persons. Having these discussions is not only educational but is also unifying in that it increases the bonds of friendship between citizens.

Is it Really a Choice? The Libertarian Myths of Choice and Coercion as Applied to Labor and the Social Contract

One of the aspects of Libertarianism that is frequently difficult for the uninitiated to wrap their heads around is the notion of inviolable rights of Libertarianism (life, liberty, property) being negative rights and not positive rights. For example, the right to property is not a right to own a certain amount of property, or even any property at all. Rather, it is a right of an individual not to not have others take any property that has been justly acquired. The view that all rights are negative rights leads to counter-intuitive judgements such as the assertion that to-work or not-to-work is a choice of the individual regardless of whether or not there are any actual jobs. But intuitiveness aside, the most interesting aspect of considering choice in this fashion is that it seems to lead to an inconsistency with regards to the way that Libertarians view governments such as the US that compel the paying of taxes. It can be argued that, as the US is a government based on Social Contract theory which most Libertarians accept, the Libertarian can choose not to accept the contract and, consequently, nothing that the US government does to a particular Libertarian can be construed as coercion so long as the Libertarian has the ability to decline accepting the contract.

Negative rights are most easily construed by considering that such rights are freedoms ``from'' something, not freedoms ``to'' do something. The classic Libertarian example of this is a person starving to death still has the right to life. The right to life does not entail some third party coming along to provide aid to a person in dire need. Rather, the right to life simply entails no third party will take another's life and that no third party will steal the food of someone and cause them to starve to death. Additionally, negative rights are seen by Libertarians as things that can be given up by the right holder. For example, a person who is starving to death and has food may freely exchange that food to a third party in exchange for money no matter how perverse the outcome for the staving person. According to Libertarians, individuals always have the capacity to contract exceptions to their rights with other individuals. In this way both wage labor and civil government become possible in Libertarianism. In wage labor, individuals part with the output of their labor in exchange for money. In civil government, individuals give up certain freedoms in exchange for security. In both cases, the giving up of rights needs to be voluntary or else the exchange is a violation of an individual's rights.

Now, in part because because I am a Christian and in part because I am something of an Aristotelean, I would argue that the right to work is a positive right. I believe that there is both something mystical and something very natural about labor. A human being who does not have the opportunity to engage in labor to some extent lacks some of the externalities that are needed to be fully human. But that claim is neither here nor there to the Libertarian. Regardless of the fact that human beings need food and shelter to survive and labor is the chief mechanism by which those things can be attained, the Libertarian holds that the right to work is a negative right, individuals can choose to work or not to work but they have no right ``to'' be given a job. If there are no jobs available and an individual has no capital to start a business, Libertarian holds that neither society nor any other individual has an obligation to give that individual food or shelter as the choice to work is always a choice regardless of external circumstances.

One might expect a similar outlook on civil government in Libertarian circles. But for the most part, Libertarianism seems to take the opposite approach and assert that when any state which infringes any of the rights held to be inviolable by the Libertarian, there is coercion involved. But under Social Contract theory, individuals are not coerced into giving up certain freedoms in exchange for security. To argue that any particular government is coercive, is to argue that there is no real choice involved in the social contract. But it seems to me that if an individual is truly free to reject all job offers but still have a choice with regards to whether or not to work, then an individual also has to be free free to reject all present states and still have a choice with regards to living under coercion or not. After all, any state that allows its residents to freely leave cannot be said to impose itself through force on those very residents. As freedoms are negative rights it follows that no individual has a positive right to a particular form of government. Further, Libertarians allow the giving up of rights through contracts, so long as individuals are free to walk away from the social contract, by permanently leaving the country for example, that government cannot be said to be coercive to the Libertarian any more than an employer who refuses to offer a job to someone who is unemployed and starving to death.

So we must conclude that Libertarian has no ground to brand as coercive any state as unjust except for those states which deny their populace the ability to leave its boundaries. In the Libertarian view, the North Korean would certainly be an unjust regime. A country such as Singapore, where one can be arrested for saying the wrong thing at the wrong time, would be a just regime because its citizens are free to reject the social contract by emigrating elsewhere. Someone who wants to be a member of a banned religious movement in Singapore does not have a positive right to do so from the Libertarian perspective but a negative right to do so. That right, the right to join certain religious movements, is a right that is voluntarily given up by the Singaporean and a right that can be taken back by a decision on the part of the individual Singaporean to rescind the social contract by emigrating elsewhere.

Now let's be clear, this judgement that a repressive state can be entirely just seems to me to be absurd. (Libertarianism doesn't lead any room for shades of grey. Either a state infringes on inviolable human rights or it does not.) But notice where the absurdity comes from, the view that particular human rights are negative. The problem is not my application of all human rights being negative rights rather than positive rights but the very assertion that all human rights are negative rights. After all, the Libertarian conclusion about wage labor being truly free is no less absurd. It just is not as obvious because at present, jobs are relatively abundant in the US. There are relatively few people in the US starving to death or even suffering a significant case of malnutrition so we do not see, like we did during the Great Depression, widespread hunger and significant numbers of people dying from starvation. Part of this, undoubtedly, is from government funded relief programs and part of this, undoubtedly, is also due to the superior financial condition of the country. But when push comes to shove, if it can be truly said that workers have a choice about whether to work or not in any nation where their food and shelter is not guaranteed then to be consistent we also have to apply that metric to civil liberties and conclude that any any regime which allows its subjects to leave cannot be unjust.

Libertarians, then, if they hold to their view of all human freedoms being negative rights and accept Social Contract theory, have no basis on which to criticize the US government for being coercive. At best, they can critique the US system on a practical level and say that `the US government would do well to build more freedoms into the law.' And I, for one, would actually agree with that limited statement. But few Libertarians restrict themselves to this more limited critique of the US. Instead, most Libertarians claim that because the US infringes on key individual freedoms that Libertarians hold as inviolable, the US is a coercive regime and, as such, is inherently unjust. In doing so, the Libertarian is inconsistent. For the Libertarian to be consistent, either some theory of politics other than the social contract needs to be adopted or it must be conceded that at least some human rights are positive rights. And as for me, I adopt the latter.

The Unchristianness of Libertarianism

The United States of America is, and always has been, a land of contradictions with regards to the marketplace of ideas. The US public is very fond at holding contradictory views of one sort or the other. One good example is the number of Christians, both liberal and conservative, that hold to Libertarianism as a political philosophy without recognition that the core principles of Libertarianism run contrary to the core principles of Christianity. While it may be true that ethical praxis that some Libertarians attach to their philosophy does not directly contradict the ethical praxis of Christianity as epitomized in the Golden Rule, the fact is that Christianity is far more than adherence to the Golden Rule and at a fundamental level, the tenets of Christianity are contradicted by the tenets of Libertarianism. Be this as it may, Christianity certainly has a different role for freedom. Rather than material freedom being an inviolable human right as in Libertarianism, moral freedom alone is a necessary but mitigated good subservient to other goods in Christian anthropology. Further, Libertarianism holds that any state which violates inviolable human rights such as political liberty is inherently unjust. But this tenet of Libertarianism contradicts not only the anthropology of Christianity but also what little political philosophy is explicitly stated in the New Testament.

Libertarianism tends to mean slightly different things to different people. Within the confines of this essay, I will follow Robert Nozick in defining Libertarianism as adherence to four principles but I will also add a fifth. The four principles Nozick applies to Libertarianism are:(1) every human person has an inviolable right to life; (2) Every human person has an inviolable right to freedom; (3) Every human person has an inviolable right to property; (4) Any government that infringes on any of these rights is inherently unjust. The principle I would add is: (5) a state that minimizes infringement on these inviolable human rights is both possible and a goal worth pursuing as it's attainment would be an improvement over any state that regularly violates any of these human rights.

Christianity also means different things to different people. And, in fact, the what it means to be Christian is a far more controversial topic than what it means to be Libertarian. Those who self identify as Christians span a large spectrum of beliefs ranging from the very liberal to the very conservative with regards to deciding the role of Holy Writ in the Christian Experience, exactly which works of the New Testament qualify as Scripture, and what (if anything) outside of the Bible can be considered a valid part of Christianity. For the purposes of this essay, I will only consider forms of Christianity that can trace themselves through history to the apostolic age with an unbroken succession. I will defer the above questions to the traditional answers of those forms of Christianity.

Some who would claim that Libertarianism and Christianity are compatible do so with the claim that there is nothing that is in Libertarianism that contradicts the either the three key commandments of the Gospels (The Golden Rule, The New Commandment to love each other as Christ has He loved his followers, and the exhortation to love God above all else) or the Decalogue. Let's assume that this is the case even though it is arguable that both the Golden Rule and the New Commandment is not compatible with the principles of Libertarianism. But the question remains of whether or not these three key commandments and the Decalogue are the only principles of Christianity. I would argue that Christianity is larger than it's praxis, the exercise of its moral teachings. After all, few would argue that Buddhism and Islam are compatible with Christianity on the basis that the five-fold path and the Five Pillars respectively are compatible with the Golden Rule and the Decalogue. Christianity also includes a distinct anthropology which implies a distinct political philosophy which includes the inherent justice of regimes which violate the human rights accorded by the Libertarian as inviolable.

Freedom, after all, is not the summum bonum of Christianity. Christianity does not even accord freedom as an inviolable right. Rather some freedoms (not all freedoms) are presented as a necessary efficient cause to finding the full and abundant life which Jesus of Nazareth claimed to bring to his followers. A writing attributed by Saint Nikodimos of the Holy Mountain, probably mistakenly, to Saint Anthony the Great puts the matter succinctly, ``Regard as free not those whose status makes them outwardly free, but those who are free in their character and conduct.'' [Palmer, G.E.H., Sherrard, Phillip and Ware, Kallistos (tr.), The Philokalia: The Complete Text Compiled by Saint Nikodimis of the Holy Mountan and Saint Makarios of Corinth Volume I. Faber and Faber, London. 1979. p. 332.] The point is that Christianity does not view physical and political freedom as necessary conditions for the human person to attain the fullness of humanity. Rather these sorts of freedoms are akin to physical exercise, of some limited value (I Corinthians 7:21, I Timothy 4:8), but certainly not ends unto themselves and certainly not inviolable rights.

But could not one argue that if Christianity sees some value in freedom that the Libertarian view of maximal human freedom does not contradict this? One could, but then one would be wrong. There are many things compatible with Christianity in limited degree that are contrary to Christianity when sought for their own ends: the sex act, consumption of alcohol, physical exercise. All of these things are good insofar as they serve as means to a virtuous end and not as ends into themselves. For example, the sex act is only good when it serves to unite husband and wife into a unity. To say that the sex act is an inviolable human right and its maximization leads to a human being made more human is to distort its value as part of what it means to be human. The consumption of alcohol is good when used medicinally or to celebrate special events such as the wedding at Cana. But the consumption of alcohol is neither an inviolable right nor something that the Christian should seek to maximize. So too, freedom.

Presented as such, this leads to a rather obvious objection. If material and political freedom are not necessary for an abundant life, does it not follow that Christianity allows use of humans beings as means to some ends (as living tools) rather than treating them as ends unto themselves? To some extent, yes, this conclusion is justified. But let us consider this conclusion in light of the fact that wage labor does the same thing. The capitalist uses workers as means to make a profit. The difference between slavery and wage labor (with respect to using human beings as means to an end rather than treating them as ends unto themselves) is not a difference of kind but a difference in extent. One can argue that the slave has no choice but to work while the wage laborer chooses to work, but this choice is illusory unless the wage laborer either lives in a society where material needs are guaranteed or one views the choice to die of starvation or exposure as a rational choice. It is, in effect, the same choice as the slave has to either work or be beaten or killed.

There is also a fundamental contradiction between the way that Christianity and Libertarianism view the injustice of a state that infringes on life, liberty or property. The Libertarian views such such states as inherently unjust because of this infringement. The classical Christian view does concede that there is a sense in which all governments are unjust but it also goes on to say that government is a just response to a irrational situation. Augustine of Hippo noted that the cosmos consists of a rational order where the higher rules over the lower: rationality rules over irrationality; God rules over man; the intellect rules over the passions. When this natural order is upset, as when man usurps the role of God and rules over other men, it is fair to say that there is a sense in which an injustice occurs. But this injustice is seen as a rational action for an irrational state of being, the fallen nature of mankind. Inasmuch as humanity imperfectly reflects the image and likeness of God, civil government is justified so long as it keeps temporal order. In other words, the Christian could concede that something akin to Libertarianism would be the ideal form of government in an world absent the fall from Paradise but that human nature as it is in the world requires a different sort of government.

While it took until Augustine to fully develop this view, it is also present in the New Testament. The Apostle Paul wrote that civil government exists in order to keep temporal order (Romans 13). Consequently, inasmuch as a government is able to keep civil order, it is justified in the mind of the Christian regardless of whether or not it respects the rights that the Libertarian sees as unjust. What the Libertarian sees as an argument to justify the regime, the Christian can only see as a mistaken argument about what the best regime might consist of. In a way this parallels the difference between classical and modern political philosophy. Most classical philosophy took government as a given and argued about its best form. Most moderns argue that government needs a sound basis in order to be valid. The view presented in the Bible, and held to by most Christians through most of history is the former, that we can argue about the best form of government but that all governments are both inherently unjust in a certain sense but fully justified in another so far as they keep civil order.

This view of course will immediately raise a in the minds of most people. On the one hand, if all governments are inherently unjust in a certain sense, does that mean that we have to hold that Germany under Adolf Hitler and the Soviet Union under Stalin had just regimes? As much as it pains me to concede that this question must have an affirmative answer, it does. But is a very qualified affirmative answer. Inasmuch as these regimes did keep civil order, they were just. But it is clear that much of the disorder of the Stalinist and Hitlerian eras was perpetrated by the state. And it must also be said that inasmuch as the state perpetuated civil disorder, they were also unjust. Unlike some qualities, justice is not a binary property. Instead it exists on a spectrum.

The astute reader may also find another objection in the above distinction between arguing for the state's validity and arguing for the best form government given a pre-existent state. We live in a democracy, so is it not possible that a Christian could believe that Libertarianism is the best form of government and pursue democratic channels to make the US a more Libertarian society? This is certainly a possibility and many Christians hold this very belief. But it must be said that, as argued above, the tenets of Libertarianism do contradict key tenets of Christianity. Libertarianism takes a view of liberty that is exaggerated from the point of view of the Christian. Libertarianism also, by not taking into account the fallen nature of humanity, levels the charge of being inherently unjust at regimes that the Christian sees as inherently just. Consequently, the Christian Libertarian is being pulled in two different directions by two different, incompatible systems of belief. As such, the Christian Libertarian exemplifies the American tradition of holding to contradictory beliefs. At least in that sense, Christian Libertarians are true Americans.