More On Same-Sex 'Marriage'

Spencer of Cairo writes,

I've been following your writing on same sex marriage and I've got to say I think you have, in a certain sense, taken the bait. SSM proponents demand much of conservatives that they are in no position to demand. For instance, they demand that conservatives, in order to justify their views on marriage, indicate a single property or set of properties unique to the relationships that currently count as marriages. "All and only heterosexual couples have what common feature?" is the challenge.

You try to meet this demand by specifying potentiality to procreate. This is only true on a metaphysical understanding of "potentiality" – in the ordinary sense, 70-year-olds have lost that potentiality.

Spencer, I think you have misconstrued my argument. I did not use the word 'potentiality.'  And I don't know what you mean by a metaphysical as opposed to an ordinary understanding of the term.  Here is what I said:

It is biologically impossible that homosexual unions produce offspring.  It is biologically possible, and indeed biologically likely, that heterosexual unions produce offspring.  That is a very deep difference grounded in a biological fact and not in the law or in anything conventional.  This is the underlying fact that both justifies the state's interest in and regulation of marriage, and justifies the state's restriction of marriage to opposite-sex couples.

I did not make the (false) claim that every opposite-sexed couple has the power to procreate. 

Unfortunately, I think conservatives do themselves great harm when they rely on metaphysics in the
marriage debate when they have recourse to other lines of response. I respect metaphysics, but it is rarely useful in politics.

I disagree completely.  The same-sex marriage question and most if not all of the 'hot button' issues currently debated are metaphysical at bottom.  Consider abortion.  Everything rides on the status of the fetus.  Is it a person in the normative sense, i.e., a rights-possessor?  What are the criteria of descriptive and normative personhood?  What are rights?  In what are they grounded?  These are metaphysical questions.  A powerful anti-abortion argument is the potentiality argument.  Underlying it, however, is broadly Aristotelian metaphysics.  Those who reject this metaphysics will be opting for some metaphysical alternative.  Questions about diachronic numerical identity arise, questions that are plainly metaphysical.  (See Fission and Zygotes.)  And so on.

I could show the same for most of the 'hot button' issues.  In general, political philosophy rests on normative ethics which rests on a theory of human nature (philosophical anthropology), which is turn presupposes metaphysics.  So metaphysics is unavoidable.  One point I will concede, however, is that we ought to keep religion out of these discussions, assuming we are addressing fellow citizens as opposed to co-religionists.   

Let me remind you that very often the law makes distinctions where there is no essential difference, as when we pick a certain age as the baseline for sexual consent. There is a certain kind of arbitrariness there, but one we must be stuck with in any event. So, essential difference is neither necessary nor sufficient for a difference in legal and social status.

You are making it sound as it it is wholly arbitrary where the law draws a line.  I gave the example of driving.  It is somewhat arbitrary, but not totally arbitrary, to make the legal driving age 16.  There are excellent, non-arbitrary, reasons for not making it five or ten, or 25 or 30.  These reasons are grounded in biological and psychological facts.  As for the age of sexual consent, a non-arbitrary lower bound is provided by puberty.  Similarly with voting and drinking alcohol.  There is a range of arbitrarity between, say, 18 and 21.  But there are excellent, non-abitrary reasons grounded in biological and developmental facts for keeping six year olds out of voting booths and bar rooms.

So I find your comment confused.  No essential difference need be cited for making the driving age 16 rather than 17, but essential differences are relevant when we move beyond the range of arbitrarity.  I am tempted to say that the lower and upper bounds on the range of arbitrarity are themselves non-arbitrary. 

Applying this to same-sex 'marriage,' there is nothing arbitrary about the law's not recognizing SSMs when it recognizes OSMs.  For there is the essential difference that procreation is impossible in a SSM but not in an OSM.  Arbitrarity and a bit of unfairness come in when the law allows non-procreating OS couples to marry.  But as I said, practical laws cannot cater to unusual cases.

A better response, and the one I use, is to challenge the challenge. Tell your interlocutor, "If I must produce some relevant property common to all heterosexual couples, then it should also be incumbent on you to specify what kinds of relationships can count as marriages, and what is the morally relevant property that all and only those relationships have. Since you think this kind of challenge is proper, you must already have something in mind to defend your side. So go on, then."  SSM proponents hate this move, because it reveals how much their strategy relies upon burden-shifting and tacit double standards. I submit that your interlocutor probably won't even tell you how much change he is committing himself to, or what marriage should be. But suppose he says "Any two consenting adults, regardless of gender." Then ask him what is the special property that all and only couples have, that no threesome has. He will not have a persuasive answer.

I deny that your approach is better, though I grant that it is a reasonable one and does have the advantage of side-stepping the contentious metaphysical questions.  But it has the disadvantage of entangling us in burden-of-proof considerations.  You accuse the same-sexer of shifting the burden of proof.  But he will reasonably demand to know why  he should shoulder the burden.  My position on burden-of-proof is that

In philosophy no good purpose is served by claims that the BOP lies on one side or the other of a dispute, or that there is a DP [defeasible presumption] in favor of this thesis but not in favor of that one. For there is no fact of the matter as to where the BOP lies.  BOP considerations are usefully deployed only in dialectical situations in which some authority presides over the debate and lays down the rules of procedure and has the power to punish those who violate them.  Such an authority constitutes by his decision the 'fact' that the BOP lies on one side rather than on the other. We find such authorities in courts of law.  But there is no court of philosophy.

It is bad sort of conservative who stands on tradition and takes the way things have been as sufficient justification for their remaining so.  The wise conservative admits that the presumption in favor of traditional ways of doing things is defeasible.  And so he takes the challenge of the same-sexer seriously.  He tries to explain why the law should recognize OS but no SS unions as marriages.  Furthermore, if he cannot meet the challenge, then he ought to re-evaluate and perhaps change his views about marriage.  It would be unphilosophical of him to stand on tradition and ignore sincerely intended rational challenges to it.

Related articles

Polygyny?

The Infertility Argument for Same-Sex Marriage

James Anderson on POMO Marriage

Comments

[Kevin W. Wong]

I think it patently false that metaphysics is rarely useful in politics. We often treat like cases in like manners. So the Civil Rights movement was definitely a situation in which metaphysics played a powerful part. We understand that African-Americans are humans in the same way as white people are humans. The latter are afforded certain dignities and rights, and therefore the former should as well.

[Bill Vallicella]

Hi Kevin,

We agree, but to be fair to Spencer, his point may have been that it is easier to persuade someone of something the fewer contentious premises one employs, premises from metaphysics being contentious.

My response is that there is no way to make any real progress without delving into metaphysics. Shifting the burden of proof onto the same-sexer won't get us anywhere.

If I am right, BOP considerations are out of place in philosophy. But that too is contentious!

But we are fallen beings, so we can expect plenty of ignorance, foolishness, contention, and murk.

[Spencer Case]

Hello Bill,

I said metaphysics is rarely USEFUL in politics, not that politics rarely involves metaphysical implications. I agree that the abortion debate gets one into metaphysical issues. But that's probably one of the reasons it appears so intractable. Metaphysical debates are rarely settled, even among experts. This is not the battleground I would choose to fight on. It makes it easy for our opponents, who can use metaphysical skepticism to their advantage. Let's not forget that politics is about action, not truth. How are you going to persuade the masses talking about accidental and essential properties like that?

Second, I don't want you to think that this is the whole of the case I'd make in favor of traditional marriage. But to begin the debate, I want to make my opponent AWARE of how much of his case depends on burden-shifting strategies, and how much easier the acceptance of the burden-shifting strategy has made it for the defenders of same sex marriage. Can reformist definitions meet the exacting standards that the traditional definition is held to? I don't believe so, and this is a point that has fueled my skepticism of the gay rights marriage agenda from very early on. The same-sex marriage proponents seem to have forgotten that they, too, have a positive agenda they are arguing for, not just overturning some "ban."

Look, I agree that just digging in on tradition is not very satisfactory, but like I said before in a previous debate, I think the way to persuade people is non-coercively. Just show them that the conservative position is tenable, that a non-crazy, non-evil person could be unpersuaded by the arguments for same-sex marriage. Given the kind of sway those arguments have over people, I'm opting for this modest dialectical goal, while fully acknowledging it is not the final destination.

[William F. Vallicella]

Spencer,

Point taken. I apologize for being a bit unfair to you by way of an *ignoratio elenchi.*

It is easy to be skeptical about metaphysical claims, but our opponents are not merely skeptical, they have their own metaphysical agenda, e.g. the POMO same-sexers that James Anderson discusses.

>>Just show them that the conservative position is tenable, that a non-crazy, non-evil person could be unpersuaded by the arguments for same-sex marriage.<<

But that is exactly what I have been doing! Or so it seems to me. What I am trying to show our opponents is that what drives us is not bigotry or some thoughtless attachment to the past just because it is the past, but reasonable considerations. Note, however, that among our opponents are some intelligent and morally decent people. So it is not enough simply to shift the burden of proof back onto them; you have to give positive reasons why SS unions ought not be recognized by the state as marriages. But you can't do that without getting into contentious metaphysical questions.

By the way, showing our opponents that we have a "tenable position" as you put it won't be enough to persuade them, not even non-coercively (whatever exactly you mean by that). For they could reply: "OK, I now grant you are not just a hate-driven bigot from fly-over country and that you have some arguments, but I choose not to accept them."

[Spencer Case]

"Non-coercive argument" is a strategy I've been developing for personal use: I mean I argue by making my position look more attractive, demonstrating the intuitive "pull" I feel, and showing them how I can be consistent with my principles, moral and thoughtful while disagreeing. That opposed to trying to undermining my opponents' principles dialectically. Success in this doesn't entail I'm right, but I maintain that this is the way to persuade people, especially when you're being targeted by a campaign that insists you must be evil, hate-mongers, slobbering idiots.

I supplement the argument here with a version of the significance of fatherhood argument. If fatherhood is a significant and important institution in society, then it's a bad thing when the government steps in to say it is completely irrelevant. It is an important institution. Yet it is one of the implications that it is not. This is a more assertive argument that again doesn't rely on metaphysics.

[Spencer Case]

Kevin,

I think that basic moral principles like "treating like cases in like manners" and principles like "black people are human beings" are not quite claims that rise to the level of metaphysics, though metaphysical truths underlie them. You can believe in treating like cases in like manners without being any kind of a moral realist, for instance (not that I would recommend it!) And the second one is a basic scientific truth. You have to have a certain kind of world metaphysically for there to be science, but I don't know that statements like "there is a dog here" and "human beings come in more than one color" are themselves metaphysical. But I'm open to persuasion.

[Bill Vallicella]

Spencer,

I like your fatherhood argument. (In a violent place like Chi Town it is not the presence of guns but the absence of fathers that is the main problem.) But why do we need fathers? Two females can raise a boy, right? If you say no, that boys need male role models, then presumably you believe that gender differences are not socially constituted as POMO types would have it. Looks like we are drifting towards metaphysics.

[Spencer Case]

Sociology is short of metaphysics, I think.