The Bachmann/McDonough Principle of Non-Discrimination

I'm thinking academic blogs might be a good place to toss out first drafts of things that may eventually make it into professional articles. Now may be a good time for that, since I've starting work on a philosophy article that brings together some things I've talked about before on this blog.

As I've noted before on this blog, Michele Bachmann maintains that civil marriage laws restricting marriage to heterosexual couples are non-discriminatory. She doesn't say that it's justified discrimination. She says that no discrimination is going on at all.

Why? Because all persons--gay and straight--face the very same marital opportunities and requirements: all are free to marry someone of the same sex, while none are free to marry someone of the opposite sex.

One section of the article I'm working on will look at an argument along these same lines that was put forward by a philosopher, Richard McDonough, in Public Affairs Quarterly (a rather prestigious journal of political and social philosophy). McDonough puts the main line of argument succinctly as follows:

Are Other Slippery Slopes Any More Slippery? Same-Sex Marriage and Polyamory

My last post aimed to systematically dismantle the argument, offered far too frequently, that allowing same-sex marriage is a slippery slope towards letting Farmer Joe marry his goat. My objective there was not merely to call this argument absurd, as is usually done by critics, but to explain why.

Several people commented in response that there are other slippery slopes that opponents of same-sex marriage are worried about, and which my last post failed to address. Some even suggested that it seems clear that the reasons for allowing same-sex marriage, if accepted, really would serve as equally good reasons for allowing various forms of group marriages (marriages involving a husband with several wives, a wife with several husbands, or more egalitarian groups which I'm tempted to call "cluster-nups").

So, I'm going to walk through here the case against there being a slippery slope from same-sex marriage to group marriage.

Again, let me begin with the following point about slippery slope arguments. They're not always unsound. It all hinges on the reasons why you would be taking a certain step. If those reasons work as well as reasons for stepping into the mess that the critic is worried about, then the critic has offered a legitimate slippery slope argument against treating those reasons as good ones for taking the initial step. I should point out, however, that a legitimate slippery slope argument is not always decisive. Sometimes the reasons for taking the first step are so compelling, so powerful, that even if we don't like what follows, we would be well-advised to bite the bullet and accept it.

But I don't think we have to even explore that follow-up question with respect to the various same-sex marriage slippery slopes that have been proposed--because they aren't legitimate slippery slopes at all.

To make this point, let me begin by reminding everyone of Michele Bachmann's bad case for the view that restricting marriage to heterosexual pairings is not discriminatory. What does Bachmann say? Here's how I summarized it in an earlier post:

A law that restricts marriage rights to heterosexual couples is not discriminatory at all, because everyone in society has the same rights with respect to marriage that everyone else in society has, namely to marry someone of the opposite sex. No one is excluded from marriage. It's just that everyone in society faces exactly the same constraint on who they can marry. It must be someone of the opposite sex. So: no discrimination, and hence no need to justify the discrimination by appealing to some consideration that could warrant differential treatment.

And here's how I responded to that argument in the same post:

...the argument is premised on the assumption that everyone has the same sexual orientation. If everyone had a homosexual orientation, then a law restricting marriage to heterosexual couples would require that everyone marry someone they have no attraction to, cannot fall in love with, cannot sustain romantic feelings with, etc. Everyone in society would be equally denied access to a deeply valued social good, namely legal recognition and support for their intimate, romantic loving partnerships. No discrimination there--although we might wonder why the state would systematically deny everyone access to this social good... 

If everyone had a heterosexual orientation, then--once again--a law restricting marriage to heterosexual couples would be unproblematic. It would preclude everyone from doing something no one had any interest in doing in any event... 

And, of course, if everyone had a bisexual orientation, then a law restricting marriage to heterosexual couples would put the same limitation on everyone...We might wonder why this constraint should be imposed, but the constraint would not be discriminatory against any individuals... 

But people don't all have the same sexual orientation. And so, legally limiting civil marriage to heterosexual couples means that heterosexuals are afforded access to a distinctive good (having their intimate romatic partnerships recognized and supported by the state) that is denied to those with a homosexual orientation.

In short, restricting marriage to heterosexual pairings discriminates against persons with a homosexual orientation. Were there nobody whose capacity for establishing and maintaining romantic intimacy were limited to members of the same sex, a law restricting marriage to heterosexual couples would not deny to any individual a social good available to others. Same-sex couples would still be denied marriage, such that if bisexuals of the same sex happened to fall in love they'd face legal discrimination as a couple. But since each member of the couple would still have access to the social good in question--just not with each other--the discrimination against the pairing would be easier to justify for reasons less weighty than would be required in order to systematically exclude a class of people from any access to an important social good available to those who aren't of this marginalized class.

The point here is this: Michele Bachmann's case that no legal discrimination is going on might actually work if there were no such thing as a homosexual orientation.

Whatever the details of our reasons for endorsing marriage equality for gays and lesbians, the wrong of legal discrimination is front and center for all of us. And that legal discrimination arises because there is such a thing as a homosexual orientation. (And there is. Really. Deny it at the peril of being the kid at the playground who doesn't want to hear the facts and so plugs up their ears and shouts "Nya nya!" to cover up what others are saying.)

But is there such a thing as, say, a polyamorous orientation--that is, a fixed and unchosen disposition, resistant to change, such that the person is unable to develop or maintain a satisfying romantic relationship with any other single individual, but is able to develop and maintain a romantic relationship only with two or more? Put one attractive mate in the room with them and...nuthin'. Add a second, and the person's sexual interest suddenly comes alive for the pair as a pair. A desire to cultivate romantic intimacy bursts forth, complete with an interest in long conversations, personal sharing, walks on the beach, bicycle rides together on a brisk fall day...but only with the pair as a pair. Take one of them away and the interest vanishes completely.

Sure, lots of people (most? all?) have a sexuality that isn't limited to one person. But that's not the same as what I'm talking about. It's one thing to be sexually interested in both Mary and Martha. It's something else to be incapable of romantic attraction towards Mary or towards Martha unless both Mary and Martha are there with you in the bedroom. It's one thing to be able to form intimate relationships with both Mary and Martha--and to have a strong temptation to form one with Martha even though you already have one with Mary. It's something else to only be capable of forming an intimate relationship with one only on the condition that you are also forming an intimate relation with the other at the same time.

That is the kind of sexual orientation that would need to exist in order for a law restricting marriage to pairs of people (and excluding triples and quads, etc.) to be a law that discriminates against a class of people.

The fact is, while there is enormously good and compelling reason to believe in the existence of a class of people with a stable homosexual orientation, there is absolutely no good reason at all to believe that there is anything like an analogous polyamorous orientation.

Furthermore, there is good reason to suppose that polyamorous groups wouldn't be able to form the kind of relationship that civil marriage exists to cultivate and support and encourage: intimate, stable, and enduring life partnerships. It's hard enough for couples to manage the complexities of interpersonal dynamics. But--as I've pointed out before on this blog (although I can't find where at the moment)--adding a third person to a relationship multiplies those complexities enormously. When you have two people, A and B, there is one relationship to deal with. Add a third person, C, and you now have six relationships: A's relationship to B, B's relationship to C, C's relationship to A, A's relationship to the B-C pair, B's relationship to the A-C pair, and C's relationship to the A-B pair.

Of course, all of us have multiple relationships in our lives, and hence have a range of complications to face. But a life partnership--a mutual commitment to share the challenges of life together, to support one another, to be in each other's corner through the years, to divide the responsibilities of making a home, to make crucial decisions as a team--that sort of relationship involves distinctive kinds of stresses and conflicts, as well as payoffs. A three-person life-partnership faces challenges that exponentially magnify these stresses and conflicts: potential for jealousy, for playing off one partner against the other in a way that creates a kind of hierarchy and privilege, for two teaming up and browbeating the third, for alliances that disempower, etc., etc.

The kind of intimacy, of sharing oneself with a life partner, that is at the heart of the best marriages is made enormously more difficult (if not impossible given the realities of human finitude), in the face of such magnified complications and potential pitfalls.

So, not only is there no polyamorous orientation such that a class of people will be discriminated against if group marriages are disallowed; there is also good reason to wonder whether a threesome (or larger group) can even form the kind of relationship that a marriage is supposed to be, let alone sustain it in the lifelong way that is the ideal of intimate life partnership which the institution of marriage holds up.

The relationships that two people have with one another tend to be different in kind from the relationships had by groups of three or more. And it's hardly obvious that the marital kind of relationship is the sort that can be had by groups of more than two. In fact, it seems pretty obvious that it isn't--so much so that I would think the burden of proof rests with those who would argue otherwise.

If I'm right about that, then there's a second way in which it is not discriminatory for the state to preclude polyamorous marriages: Groups of more than two simply can't have the marital sort of relationship at all, so denying it to them isn't denying them anything at all.

But suppose I'm wrong about that. Suppose there is only the one reason why it is not discriminatory to rule out polyamorous marriages in the way that it is discriminatory to rule out same-sex ones--namely the first one I mentioned, having to do with sexual orientation. That would be enough by itself--but there's more to be said. Even if groups of more than two can manage to achieve the marital kind of relationship, achieving it for a larger group would be a truly monumental task given our human condition. Maybe it could be sustained for a year or two. But marriage as a life-partnership isn't realized by pulling something off for a couple of years. And failed marriages are a matter of social concern.

Since no individuals are being discriminated against (absent a polyamorous orientation), the state's burden for justifying a restriction on the number of people who can participate in a single marriage is substantially lower than would be the case were individuals being subject to discrimination by the restriction. And the fact that such a restriction promotes the stability of the marriage contracts that the state helps to create is, it seems, a sufficient reason for the state to restrict official, state-sanctioned marriage to pairs.

(I imagine that greater stability could be attainable in group marriages if there were a clear hierarchy--where, in lieu of genuine partnership, what one had was one dictator ruling it over a few subserviant helpmates. But I also take it that equitable and egalitarian relations among human beings, including between the sexes, is a good that we have a social interest in pursuing. Maybe one reason why conservatives tend to see a slippery slope to polygamy is precisely because they secretly idealize male patriarchy in which husbands lord it over their wives--and don't see a substantive difference between a husband lording it over one wife or over several. But in that case, the slippery slope exists even in the absence of the state extending marriage to same-sex couples.)

Marriage is a stabilizing force. The gay community would be stabilized by access to marriage--but far more so if same-sex marriage were restricted to pairs than if it were made available to groups. Likewise for heterosexuals. The state is in the marriage business in part for the sake of achieving that stabilizing effect, and as such has a good reason to choose that form which does the best job of promoting the stabilizing outcome. (And let me point out that I said "in part," since in the last post some people seemed not to notice this and took a passing remark about one of the state's purposes for marriage as if it were the whole thing. If you want a fuller picture of my views on why the state is in the marriage business, see here.)

If the state has good reason to promote the stabilizing outcome that marriage makes possible, the state has both a reason to make marriage available to same-sex couples (thereby extending its stabilizing effects into the gay community) and a reason to preclude group marriages. Obviously, then, this case for same-sex marriage is not a slippery slope to group marriage.

In sum: Unlike in the case of same-sex marriage, precluding group marriage does not discriminate legally against a class of individuals. Furthermore, there is good reason to suppose that, unlike in the case of same-sex marriage, precluding group marriage does not discriminate in the sense of denying marriage to sets of people who are equally capable of creating the marital kind of relationship--because sets larger than two aren't equally capable. Finally, while the state's interest in promoting social stability is served by extending marriage to same-sex couples (and harmed by precluding same-sex marriage), the reverse is true for group marriage. Thus, all the main reasons that I offered in my previous post for extending marriage to same-sex couples are reasons that just aren't reasons for extending marriage to groups.

Hence, there is no slippery slope. Not even close. Rather than a downward oil-slicked glass slide between same-sex marriage to group marriage, what we have is a series of brick walls.

Note: I haven't talked here about incestuous marriage--but I think the last two posts make the reasoning process for assessing the merits of a slippery slope argument clear enough, so that anyone can discern for themselves the absurdity of saying there is a slippery slope from same-sex marriage to parent-child or sibling marriages (or pedophelic marriages, etc.). In these cases, ask if there is a sexual orientation that makes precluding this sort of marriage discriminatory against a class of individuals. If no, then you don't have a slippery slope. And ask, furthermore, whether the kind of relationship that would (or at least could) result is the sort that legal marriage is supporting. If no, then you don't have a slippery slope. And ask, furthermore, whether there is a significant state interest by which same-sex marriage and this other kind of marriage would have to be viewed differently. If yes, then you don't have a slippery slope.

Taking the Slippery Slope Seriously...

...At least seriously enough to show why those who invoke it can't be serious.

The other day a student of mine told me she'd been with a friend to a Young Republicans meeting. Since we'd recently been talking about same-sex marriage in class, when the topic came up at the meeting she asked the speaker about the propriety of invoking religious arguments when the topic is civil marriage.

The speaker responded with the famed slippery slope argument: If we let gays get married, what's to stop Farmer Joe from marrying his goat?

Apparently, he conceded that this wasn't likely to happen "here in Oklahoma." But still, he threw it out there as an "extreme" that legalizing same-sex marriage would open the door to.

My student was a bit astonished, probably because the slippery slope argument was one of the more preposterous challenges to marriage equality that we'd talked about in class. It was an argument I'd picked apart with some care. Once you've actually done that--taken the time to walk through the process of picking apart the logic (or lack thereof) of the slippery slope argument--it's very hard to take seriously anyone who brings it up in all earnestness.

But not everyone has actually walked through the argument in that careful way. It's not surprising. More often than not in public dialogue today, when someone brings up the slippery slope argument critics respond with rolling eyes, ridicule, and one-liners.

I understand the impulse. I do. I even think there's a place for it. But there's also a place for taking the argument seriously enough to demonstrate why it doesn't work--why it's failure is not just a matter of opinion but a fact about the argument.

Most critics don't take the time to show this. Consider the following rebuttal from Bill Maher:



Now he makes a significant point here: As a matter of history, instances of extending rights to people traditionally excluded from them have not, inevitably, led to animals acquiring those same rights.

But there are problems. First of all, there are those (such as Peter Singer) who draw parallels between the pursuit of human equality and the pursuit of animal equality, and attempt to make the case for animal equality on those grounds. They don't support voting rights for dogs--for good reasons. But if you're not thinking clearly about those reasons, you might get caught up in confusions that undercut what Maher is trying to say.

The deeper problem with Bill Maher’s comment here is that some people will say, “Yeah, but same-sex marriage is different from voting rights for women.” They’re wrong about that, but Maher’s comment doesn’t show them why. And until you clearly show why, those who persist in making the slippery slope argument can do so without its unsoundness being plain for all reasonable people to see.

So, consider this post an effort to show why same-sex marriage is no more likely to open the door to inter-species nuptials than women's suffrage was prone to culminate in voting rights for lemurs. If anyone doesn't already see why this is so, feel free to refer them here.

When I talk about the slippery slope argument against same-sex marraige with my intro-level ethics students, I treat it as if it were a serious objection. This affords me the opportunity to make some general points about when slippery-slope arguments are valid and when they're not.

I explain it as follows: A "slippery slope" from one public policy decision to some extreme outcome exists if and only if your reasons for making the policy decision, were they accepted as sufficient, would also have to be regarded as sufficient for allowing the extreme outcome. So, you need to ask about the REASONS why we would make the policy decision in question. If the reasons for extending voting rights to women are also adequate reasons for extending those same rights to hamsters and lemurs and squid, then a slippery slope exists. If the reasons don't extend from women's suffrage to hamster suffrage in this way, then no slippery slope exists.

So: in the case of extending voting rights to women, what was the reason? It was that women have both an interest in democratic participation through voting and a capacity to participate in this way. As such, their disenfranchisement is legal discrimination. Not so for hamsters.

Likewise, gays and lesbian have both an interest in having their intimate life-partnerships legally recognized and supported by the battery of rights that go with civil marriage, and they have the capacity to enter into such legal partnerships. As such, their exclusion from marriage is legal discrimination. Not so for Farmer Joe and his goat.

This is the short version. But a more detailed debunking of the slippery-slope argument is possible...and, for reasons I'll get to at the end, I think it's worth it.

Equality under the law is a crucially important secular value in a liberal democracy. Thus, any unequal treatment under the law requires a compelling justification—of the sort that obtains in the case of, say, denying drivers’ licenses to the blind. The justification cannot be a purely sectarian religious one (such as, “My faith teaches me that women are subordinate to men and should defer to men in important decision-making, and so shouldn't vote”). That would allow one religion, not shared by all in society, to trump a central, shared secular value (namely the desire everyone has to be treated equally under the law). Such religious trumping of secular values would mean the state is adopting for policy purposes a particular religion’s beliefs, and it would involve making all citizens subject to the implications of this one religion’s teachings. As such, it would violate both separation of church and state and freedom of religion.

Put simply, women were given the right to vote because failure to give them this right amounted to discrimination under the law, and we couldn't see any compelling secular justification for such discrimination.

But what about hamsters? Hamsters have no interest at all in democratic participation through voting...and are wholly incapable of it. Give them the vote, and they'll keep running in the hamster wheel and chewing all night long on the bars of their cage. And they will never vote. Ever. Although some hamster owners might see the opportunity for voter fraud by registering their hamsters and "helping" them cast their ballots.

In short, denying voting rights to hamsters does not deny them anything they could actually use. The case for legal discrimination doesn't even get off the ground. You're not the victim of discrimination when the law refuses to give you what the law cannot possibly give you.

The same-sex marriage case is completely parallel to this. In the case of extending civil marriage rights to same-sex couples, what’s the reason? The reason begins with an understanding of what, from the standpoint of the state that confers civil marriages, the marital relationship is. The state sees marriage as an intimate association defined in terms of life-partnership, a partnership usually formed based on love and characterized by mutuality, support in life's activities (which may or may not involve shared responsibility in child-rearing), shared decision-making, help in times of trouble, etc. The range of legal rights conferred on married couples reflect this understanding of the marital contract as an intimate life-partnership.

So here's the problem. Restricting civil marriage to straight couples means that legal recognition of one's intimate, loving life-partnership (and the rights that go with that recognition) is made available to persons with a heterosexual orientation but denied to those with a homosexual one. This is legal discrimination (and if you think Michele Bachmann's rebuttal to this has any force, see here). Legal discrimination must have an adequate justification—which can’t be a sectarian religious one.

The reason why more and more people are arguing for extending civil marriage rights to gays and lesbians is because not doing so is legal discrimination, and because they can't see any compelling secular justification for inequality under the law in this case.

But what about Farmer Joe and his goat? They're not being denied anything by being deprived the right to marry, because they cannot form an intimate life-partnership in any event. A "partnership" in the human sense involves a deliberate mutual decision to share in the challenges and opportunities of life, to make important choices together, to share responsibilities, etc. My friends John and David are fully capable of forming such a partnership (although Rick Santorum seems committed to denying this for reasons that are more than dubious and involve waving napkins around). My friends Pat and Diana have a long-standing partnership that would be a model for married couples everywhere.

Joe and his goat, not so much.

Thus, Joe and his goat aren't being denied legal recognition of an intimate life partnership, because they can't have such a thing in the first place. The case for legal discrimination against Joe and his goat doesn't even get off the ground--and this is clear even if we never even address the fact that homosexuality as an orientation is real, whereas the hypothesis of a hetero-species orientation (such that some people--and goats, I suppose--are only capable of forming and sustaining romantic relationships with animals of species other than their own) is dubious at best.

Even were we to somehow stumble erroneously into the view that it is legal discrimination to deny Joe and his goat a wedding licence, there are obvious secular justifications for such "discrimination" that simply don't come up in the case of the actual discrimination that is really taking place when same-sex couples are denied civil marriage. The state is in the marriage business in part (as Jonathan Rauch has convincingly argued) to help provide "default support persons" for members of society--someone whose job it is to be there to help you through the hard times. That's a key reason why the government happily issues marriage licenses to elderly couples who meet at the church bake sale, even though there is no prospect of children. It's a good reason for the state to issue marriage licenses to gay couples, too.

But the goat isn't going to provide Farmer Joe with any such support. I suppose Joe could eat the goat if he falls on hard times, but a marriage license won't help him do that.

It may seem as if, by taking this argument as seriously as I have, I've been beating a dead horse. Or a dead goat.

And I have. The metaphorical goat is, after all, dead. But apparently some people haven't noticed yet. Maybe they think it's just sleeping or something. In such cases, it may help to wallop the corpse.

And sometimes walloping the corpse makes the situation clear in advance, such that a smooth-talker making the case that the goat is alive won't be persuasive.

"I've seen the goat. It didn't budge when Uncle Roy whacked it. Trust me, it's dead."

UPDATE: In response to comments asking about less "extreme" slippery slopes, I've written a follow-up post that applies the same strategy of thinking to the purported slippery slope from same-sex marriage to group marriages. Check it out here.

On the Minnesota Anti-Equality Amendment: 5 Wrong-Headed Arguments

In recent years, there have been numerous attempts to prevent same-sex couples from having equal access to civil (legal) marriage. One popular strategy has been to try to use ballot initiatives to revise state constitutions to define marriage as being "between one man and one woman." A measure of this sort passed here in Oklahoma a few years back, one was famously passed and then overturned in California, and another passed in North Carolina earlier this year.

In November, Minnesota will vote on a similar ballot measure. This one strikes close to home. My best friend, who is gay, lives in Minnesota. I have many close relatives there, including my cousin Jake, who is gay. If this measure passes, people I love will not merely be denied access to marriage. More seriously, the state will symbolically marginalize them.

Conservatives routinely point out that marriage is one of the bedrock institutions--perhaps the bedrock institution--of society. They're right. And to be excluded from participation in such a bedrock institution amounts to being told that you don't really fit, that you don't really have a place at the table. It's one thing to remain single by choice. It's something else to be forced into that choice because society declares that, by virtue of who you are, you have no right to take part in our culture's basic social unit.

So, why do people think this is a good idea?  To write discrimination and social marginalization into the very constitution of your state, you'd better have good arguments. I've heard many arguments, but are any of them any good? I want to consider here a few of the most popular and explain why I don't find them any good at all.

1. "It can't be marriage because marriage is by definition between one man and one woman. To call a same-sex relationship a marriage is like calling a car a duck."

This was a favorite argument of Rick Santorum on the campaign trail. The idea here is that "marriage" refers to a certain kind of thing, and that same-sex partnerships just aren't that kind of thing. Now I don't want to get into a lecture about the philosophy of language here, but it's important to note that terms are used in different ways. Not every term refers to just one very specific sort of thing.

I suppose we can all agree that "marriage" refers a relationship of some sort. But what sort? Well, actually, the answer to that has changed over time. In some times and places, the marital relationship has been mainly proprietary: a husband "owns" his wife, especially her sexuality, so that he has excusive rights to use her body for sex. From that standpoint, to insist on gender equality is to redefinied "marriage": if spouses are equal they can't have that kind of relationship. Does that mean that, since in the past marriage was proprietary, today's marriages aren't really marriages?

Of course not. Our concept of what sort of relationship can qualify as a marriage has changed. "Marriage" is the kind of term that can weather such changes, because it's a more flexible term than the name for a particular species of animal, such as "duck." 

So what sort of relationship do we have in mind today when we use the term "marriage"? Here's one common understanding: marriage is a relationship in which two people who love each other in a romantic way join their lives together into a committed, intimate, and enduring partnership in which they vow sexual fidelity and promise to care for one another even when times get tough.

Notice that this understanding doesn't include making babies. And that's important. Because we allow elderly people who can't have children to get married. And we allow infertile couples to get married. If a young bride-to-be has to have a radical hysterectomy three months before the big day, we don't demand that she and her fiance call off the wedding. They can still get married, because marriage is about a certain kind of relationship that the two of them can have even if babies will never be in the picture--a relationship characterized by love and fidelity and mutual care and partnership in life's joys and sorrows.

And guess what? Two men can have that kind of relationship. So can two women. And this point leads to the second bad argument against marriage equality, namely...

2. "If two men are allowed to get married, then pretty much anything goes. We'll have to let Farmer Joe marry his sheep."

Aside from being insulting to Farmer Joe, this argument is a classic case of the slippery slope fallacy. To put it bluntly, Farmer Joe can't have the kind of relationship described above with a sheep. If your reason for extending marriage rights to same-sex couples is that they can have the kind of relationship that heterosexual married couples have, then there is no slippery slope. Likewise, an adult can't have that kind of relationship with a child, so we don't have to worry about opening the door to pedophelic marriages. The slipper slope argument is just dumb, and most people know it.

So, are there any better arguments? How about this one:

3. "Marriage between one man and one woman is the way God wants it."

Really? How do you know? Because of how you interpret the Bible? If so, then it's because you read the Bible in a way different from the way I do, and because you attach a different sort of religious authority to the Bible than I do. Or maybe you ascribe to the Roman Catholic Church's development of natural law theory as applied to human sexuality. If so, I think this approach elevates natural law higher than the law of love in a way that doesn't reflect the priorities of Jesus. Maybe you disagree with that. Fine.

But that's the point. The idea that God wants things a certain way is a sectarian religious idea, based on a controversial worldview. We live in a society in which freedom of religion is constiutionally guaranteed, and in which the Constitution declares that there will be no establishment of religion by the government. That is, the government is not supposed to take sides in religious disagreements by, in effect, basing public policies on one religious community's convictions and then requiring that everyone else live by those policies. Your religious freedom--your freedom, for example, to refuse to marry same-sex couples in your church--depends on the kind of separation of church and state that prevents the government from imposing on all of us public policies that reflect the religious convictions of some.


Some people, however, argue that the majority can impose its values, whatever their source (religious or otherwise), at least sometimes. I agree. But the sometimes is important here--because the majority can't legitimately impose its values in ways that truncate the rights and equality of the minority. And this leads to the fourth argument I want to consider:

4. "Restricting marriage to heterosexual couples reflects the values of the majority of Americans, and there's nothing wrong with that so long as no one is being treated unequally under the law. And under the traditional laws, everyone has the same rights as everyone else to get married. They just have to follow the same rule, consistently applied, that it be to someone of the opposite sex. There is no discrimination here."

This argument is such a clunker that I wouldn't bother with it at all were it not for one simple fact: the argument was put forward in all seriousness by Minnesota Congresswoman Michele Bachmann while she was running for the Republican presidential nomination.

So why is this argument so bad? Because there is such a thing as sexual orientation. Most readers of this blog post are likely to be straight, so let me ask you this. Suppose there were a law that restricted marriage to same-sex couples. Now, you aren't even remotely attracted to members of the same sex, and you never will be. If you're in a loving relationship, it's with someone of the opposite sex. If you're not, then one day you might be--and it will be with someone of the opposite sex. It will never be with someone of the same sex. So, this law says that because of your sexual orientation, none of your romantic, loving relationships will ever enjoy the legal recognition and legal rights (more than a thousand federal benefits, by the way) that come with marriage. That's available only (on this hypothetical law) to your gay and lesbian neighbors.

You really want to say that this isn't legal discrimination? If, because of something outside your control, you are legally denied a social good (legal support and rights for your intimate partnerships) available to others...well, that's the very definition of legal discrimination.

And so we're led at last to one final argument:

5. "Legalizing same-sex marriage is bad for children."

But since I just recently attacked this argument here (and in a more philosophically rigorous but less accessible way here), I will simply say this: The children who are now being raised by same-sex couples would surely benefit from the stabilizing effects of marriage. Marriage, conservatives argue, provides the kind of loving and stable context ideal for raising children. They're right. And same-sex marriage will therefore be good for those children being raised by same-sex couples. And since I really don't think any children who would otherwise be raised by loving heterosexual couples are going to be dragged out of these homes and thrust into same-sex homes should same-sex marriage be legalized, I don't see how legalizing same-sex marriage could effect those kids. The other kinds of arguments rely on nothing but empty scare tactics that accuse gays and lesbians of being predators of children--and somehow suggest that access to marriage will be used as a weapon in their predatory schemes. Such arguments are nothing but empty and vicious slander, insulting to all the compassionate and decent gay and lesbian persons I know, and should be dismissed as such. 
 
Are there other arguments for writing marriage inequality into Minnesota's constitution? Yes. Some are worse than these. Some are offered with more extensive intellectual and scholarly sophistication--which means it takes a lot more work to figure out what the argument really is and how it should be evaluated. When I've made the attempts (such as here and here), I've found them to be unconvincing. But (unless I've missed something glaring--have I?) the five arguments above seem to more or less touch on the main reasons for opposing same-sex marriage offered in the public square.
 
If that's right, then the public square has little good reason to oppose same sex marriage...and Minnesotans should know what to do on voting day.

Philosophical Public Service Announcement: Michele Bachmann's Argument Against Same-Sex Marriage is Bad

One public service that professional philosophers can (and probably should) provide is to carefully explain why certain popular arguments on matters of public interest aren't any good.

Doing this is important because some bad arguments are delivered sincerely by politicians and pundits in the public sphere; and these arguments, despite their unsoundness, play a role in shaping or solidifying people's convictions. And even though anyone who isn't already a true believer can smell something fishy, in some cases it can be hard for the ordinary person to pin down and clearly explain what's gone wrong.

Occasionally I feel the need to present such arguments to my students. A few weeks ago, when discussing same-sex marriage in one of my classes, we were looking at an argument for same sex marriage that relied on the following premise:

Restricting marriage to heterosexual couples amounts to legal discrimination, and thus stands in need of a substantive justification--a compelling state interest, beyond majority preferences or sectarian religious beliefs, that could warrant the state in waiving the presumption of equality under the law.

This premise strikes me as clearly true--and it seemed that pretty much everyone in the class agreed. Those who were opposed to same-sex marriage didn't deny that current practices are discriminatory. What they denied is that the discrimination is unjustified. They thought there were good reasons to exclude same-sex couples from the legal institution of marriage, but were prepared to concede that gays and lesbians were being legally denied something that the heterosexual majority enjoyed.

But I knew full well that there's an argument often repeated in the public sphere which challenges this--an argument which purports to show, not that the discrimination is justified, but that no discrimination is going on at all. So I threw it out there. Here's how the argument goes:

A law that restricts marriage rights to heterosexual couples is not discriminatory at all, because everyone in society has the same rights with respect to marriage that everyone else in society has, namely to marry someone of the opposite sex. No one is excluded from marriage. It's just that everyone in society faces exactly the same constraint on who they can marry. It must be someone of the opposite sex. So: no discrimination, and hence no need to justify the discrimination by appealing to some consideration that could warrant differential treatment.

So what did my students say when I laid out this argument? Very little. I saw some eyes roll. One student said, "I refuse to dignify that argument with a response." They generally sensed it was a bad argument, but they weren't quite able to spell out where the argument goes wrong.

"But if you don't think the argument is convincing," I said to the student who refused to dignify the argument with a response, "you need to be able to explain why. Because this is a major public dispute right now. And not only are there people out there who are sincerely making this argument, but there are people whose prior convictions are being strengthened by it. Put simply, the argument sounds reasonable to them."

Of course, one person who delivers just this argument is GOP presidential candidate Michele Bachmann. Here's a video in which, among other things, she articulates precisely this argument in response to a high school student questioning her opposition to same-sex marriage:



So why is Bachmann's argument bad? (There's actually more than one bad argument in this clip, but I want to focus on the one about same-sex marriage.) The teenagers in the clip were persistent and courageous, but they didn't articulate the fatal flaw in Bachmann's argument with the kind of clarity that would expose it for what it is (maybe even to Bachmann herself).

And what's the fatal flaw? Put simply, the argument is premised on the assumption that everyone has the same sexual orientation. If everyone had a homosexual orientation, then a law restricting marriage to heterosexual couples would require that everyone marry someone they have no attraction to, cannot fall in love with, cannot sustain romantic feelings with, etc. Everyone in society would be equally denied access to a deeply valued social good, namely legal recognition and support for their intimate, romantic loving partnerships. No discrimination there--although we might wonder why the state would systematically deny everyone access to this social good. (I suppose if everyone had a homosexual orientation, the reason might have something to do with motivating reproduction in a world where no one is drawn to reproductive sex).

If everyone had a heterosexual orientation, then--once again--a law restricting marriage to heterosexual couples would be unproblematic. It would preclude everyone from doing something no one had any interest in doing in any event: namely, marrying someone they cannot be attracted to or cultivate romantic feelings for. It would be a kind of silly and pointless restriction, a bit like prohibiting people from eating unhealthy food they despise in contexts where courtesy doesn't demand it.

And, of course, if everyone had a bisexual orientation, then a law restricting marriage to heterosexual couples would put the same limitation on everyone (I've often joked that conservative Christians think everyone is bisexual--after all, they declare that "it's a choice"). We might wonder why this constraint should be imposed, but the constraint would not be discriminatory against any individuals (although it would still discriminate against couples who happened to be of the same sex, and thus would cause considerable pain when people had the bad luck of falling in love with someone of the same sex and then had to face the decision of whether to break up with someone they loved or go on with the relationship knowing they'll never have access to the social and legal goods of civil marriage).

But people don't all have the same sexual orientation. And so, legally limiting civil marriage to heterosexual couples means that heterosexuals are afforded access to a distinctive good (having their intimate romatic partnerships recognized and supported by the state) that is denied to those with a homosexual orientation. (Furthermore, the law creates a situation in which bisexuals are confronted with a potential life challenge--see above--that heterosexuals are immune from). 

Of course, Bachmann claims that a homosexual orientation is something that can be "healed" through so-called reparative therapy or ex-gay ministries. The evidence hardly supports this claim. At best, gays and lesbians can be habituated to more effectively suppress their natural attractions and, perhaps, learn strategies for functioning sexually with people they are not attracted to. But that isn't conversion to heterosexuality. They remain persons with a homosexual orientation who are, we might say, better able to outwardly mimic the sexual lives of persons with a heterosexual orientation (but who, in mimicking this, cannot experience the inner satisfaction and relational intimacy that is possible for heterosexuals).

But suppose Bachmann is right. Suppose reparative therapy actually can succeed in turning a non-heterosexual into a heterosexual. Would it then be the case that restricting marriage to heterosexual couples is not discriminatory? No. It would still be discriminatory. Why? Because, in order to enjoy the distinctive social goods offered by the legal institution of marriage, those who happen to have a homosexual orientation would be required to do something that heterosexuals would not be required to do: They'd need to successfully undergo conversion therapy.

Heterosexuals who fell in love could head straight to the appropriate municipal offices to apply for a marriage licence. If civil marriage were available to same-sex couples, then gays and lesbians could do the same thing. But as it is in most states, they can't. Instead, they're denied the benefit of legal recognition and support for their intimate relationships unless and until (assuming, as Bachmann does, that this is possible) they achieve a successful "conversion" (and spend the time and other resources needed to achieve this).

Imagine, if you will, that public funding for attending state universities were only available to people who spoke English with an American accent. And suppose that there are accent coaches out there who have a track record of success in teaching this ability to those willing to invest the time and resources. Does the latter fact make the policy non-discriminatory? Of course not. Discrimination in the conferral of social goods based on one's accent remains discrimination even if it is possible, with time and effort, for those who have the "wrong" accent to change it.

None of this implies that discrimination is unjustified (although I think it is). But it does imply that to argue that there is nothing discriminatory going on is just misguided. Bachmann's argument is bad. No one should be influenced by it one way or the other. And so its badness needs to be explained, again and again if necessary, so as to shut down any power it might have to erroneously shape public thinking. Consider this my small effort in that cause--and feel free to direct others to this post if you'd rather not explain the badness of the argument yourself.