Thursday, October 16, 2008

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.


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