Gay rights vs. religious liberties (NPR) (hat tip: Rod Dreher)

As gay couples in California head to the courthouse starting Monday to get legally married, there are signs of a coming storm. Two titanic legal principles are crashing on the steps of the church, synagogue and mosque: equal treatment for same-sex couples on the one hand, and the freedom to exercise religious beliefs on the other.

As states have legalized same-sex partnerships, the rights of gay couples have consistently trumped the rights of religious groups. Marc Stern, general counsel for the American Jewish Congress, says that does not mean that a pastor can be sued for preaching against same-sex marriage. But, he says, that may be just about the only religious activity that will be protected.

"What if a church offers marriage counseling? Will they be able to say 'No, we're not going to help gay couples get along because it violates our religious principles to do so? What about summer camps? Will they be able to insist that gay couples not serve as staff because they're a bad example?" Stern asks.

Stern says if the early cases are any guide, the outlook is grim for religious groups.

A few cases: Yeshiva University was ordered to allow same-sex couples in its married dormitory. A Christian school has been sued for expelling two allegedly lesbian students. Catholic Charities abandoned its adoption service in Massachusetts after it was told to place children with same-sex couples.

The same happened with a private company operating in California.
A psychologist in Mississippi who refused to counsel a lesbian couple lost her case, and legal experts believe that a doctor who refused to provide IVF services to a lesbian woman is about to lose his pending case before the California Supreme Court.

And then there's the case of a wedding photographer in Albuquerque, N.M.
On January 28, 2008, the New Mexico Human Rights Commission heard the case of Vanessa Willock v. Elane Photography.

Willock, in the midst of planning her wedding to her girlfriend, sent the photography company an e-mail request to shoot the commitment ceremony. Elaine Huguenin, who owns the company with her husband, replied: "We do not photograph same-sex weddings. But thanks for checking out our site! Have a great day!"

Willock filed a complaint, and at the hearing she explained how she felt.
"A variety of emotions," she said, holding back tears. "There was a shock and anger and fear. ... We were planning a very happy day for us, and we're being met with hatred. That's how it felt."

I guess a possible bright side of this is that it could lead to a form of sorting: straight, married people who want to be able to practice their religion will have reason to move to states where the law recognizes the traditional meaning of marriage.  Religious refugees have played a hugely disproportionate role in the advance of civilization.  Cases in point: (a) saving Western civilization in the monasteries after the fall of Rome, (b) founding America.

Comments

[ms]

I'm confused--is this from a year ago? I hope gay couples aren't heading to the courthouse to get married this coming Monday here in California!

[nato]

The bills either passed or up for consideration typically have fairly strong religious protection clauses in them. Further, in many if not most cases religious and other ideological institutions can do whatever they want in terms of discrimination without having any legal liability as long as they don't take government money and they don't provide public accommodation.

That said, there looks to be at least a few bad legal judgments out there that need reversing, with the wedding photographer case seem to be the clearest.

[Nathan Smith]

I wouldn't hold my breath on that. Roe v. Wade hasn't been overturned, and the very fact that gay marriage was imposed by the courts in the first place shows how little respect the judiciary has for the law when there's a temptation to achieve the liberal agenda by social engineering.

Here's an interesting question: to what extent will gays who want to marry move to states where they can? Will they "vote with their feet" in favor of gay marriage? Will Christian conservatives and other believers in traditional marriage "vote with their feet" against it? An interesting thing about the federal model is that it enables sorting and regulatory competition. If we get a long run division of traditional marriage vs. gay marriage states, we'll have a sort of "natural experiment" on the effect of gay marriage laws on marriage and family formation.

[ms]

I would think that people who actually live in a place would be reluctant to pick up and move for that reason alone, but it might greatly affect people's choices about where to live when they are making such decisions. The religious freedom issue is especially important when judges impose SSM on states--they tend not to include protections. Legislatures are far more likely to do this. When this issue comes to a vote of the people, however, so far it has always been turned down. I'm hoping it will be reversed by the people in Maine and Iowa. Forcing SSM on people only leads to division and bitterness. I think we should wait and see what this "natural experiment" in Canada and New England gives us. After some years we'd have some data to go on and could argue about it more intelligently.

[nato]

"Will they "vote with their feet" in favor of gay marriage?"

If they do, it probably won't be very quickly. To some extent one round of migration drew to a close in the early part of this decade as gay people started feeling secure enough in their hometowns to stay. Those who want to move to marry seem likely to want to work for marriage in their own states, both because they're more likely to think it's possible and because they've put down roots.

What might change that is if DOMA is largely repealed; then the federal marriage rights and privileges become available, which may be considerable enough to justify uprooting children and careers.

[nato]

In a related note, San Francisco's Castro neighborhood has become progressively less of a gay bedroom community as it has become more of a tourist attraction for out-of-towners interested in its historical place in queer history. This follows the trend of historical "gay" areas becoming more and more demographically heterosexual while the percentage of same-sex households has shot up in the Midwest, South and so on.

[Joyless Moralist]

I have no great read on what homosexuals are and aren't willing to do to get married, but it seems unlikely to me that they would want to move in large numbers to states that allowed gay marriage, because, practically speaking, marriage doesn't actually make any significant difference to their lives. It's more just one of the milestones in the cultural battle to the complete societal legitimization of homosexuality. Once same sex marriage is allowed, the next logical step is to use that legislation as a tool in furthering the same process... for example, by prosecuting religious professionals or organizations whose practices show that they don't support homosexual coupling. But since, on a personal level, marriage per se doesn't change much for a homosexual couple, it seems more likely (as Nato suggested) that most people would just as soon stay where they are, and involve themselves in whatever cultural battle is being fought there. Some might seek out places where they feel the prevailing culture attitudes are more friendly to their lifestyle, but some might even want to live in states that haven't allowed same sex marriage, insofar as this gives them more opportunity to contribute, as they would see it, to a noble struggle.

What seems much more likely is that religious folks might either pack up and move, or at least, if they're younger, plan to settle down in more conservative states, depending on their career plans. In academia (a particularly mobile field, to be sure) you certainly see people willing to move in order to be at universities where they feel more comfortable with the prevailing ideology. Those same sorts of considerations will become more and more relevant to professionals whose ability to practice their professions in good conscience is increasingly under threat (doctors, marriage counsellors, wedding photographers, etc.) in states like Massachusetts or Maine. I can easily imagine those people moving to places where they felt more secure in their jobs.

The depressing thing about this battle is that there is no "natural resting place." That is, there is no promising compromise that's going to satisfy even a majority of people. Homosexuals (and their advocates) aren't going to be happy until espousing traditional sexual morality is held on a par, both socially and legally, with racism. And that is utterly unacceptable to a non-trivial portion of the American public. Traditional sexual morals have taken something of a beating these last few decades, but they're not just going to go up in smoke all in a generation. Unlike racism, they *actually are* a deep and integral part of most major world religions, and the legacy of centuries' worth of tradition. People who want to compare their gay rights rallies to the 1960's civil rights movement just don't understand what they're dealing with.

[Joyless Moralist]

By the way, Nato, it seems a little glib just to dismiss worries about religious freedom by saying that religious organizations can carry on without violating their beliefs "as long as they don't accept federal funds." Depending on what sort of organization it is, that could be a pretty crippling disadvantage. I mean, yes, there are some smallish colleges that have decided not to accept federal funds in order to preserve their independence from government ideological manipulation. Bob Jones is the famous case, but I know some small Catholic schools that have voluntarily refused all federal money (after reading the writing on the wall concerning issues like this.) I'm less familiar with Protestant schools, but I expect a few of them have done the same.

It must be said, though, that this decision places severe limitations on what sort of organization you can build. In a world in which the government forks out billions to help students pay for college, plus gobs more money in grants (mostly to scientists) that represent a major source of funding for most major universities, a college or university that refuses all federal money is more or less necessarily going to be small, oriented towards teaching, and open only to students from at least moderately well-off families. A hospital that can't accept Medicare/Medicaid is similarly going to face severe disadvantages. And particularly under an administration like this one, that seems very happy to starve private organizations as a means to fattening the federal giant, the obstacles to forming these independent religious institutions will become ever higher. So even if we can assume that this very extreme opt-out clause will continue to be respected, that still doesn't go very far at all towards minimizing the threat to religious freedom.

[nato]

"practically speaking, marriage doesn't actually make any significant difference to their lives"

Huh? Getting married made a significant practical difference to us. If we'd only been married at a state level, a majority of the financial difference would have gone away along with a fair chunk of administrative differences.

[Joyless Moralist]

Maybe "not any" would be a bit strong, at least in some states, though in states that already have civil unions of some kind, it really does sometimes make virtually no difference (practically speaking) if the legal status is "upgraded" to marriage. But even in cases where it does make some difference, say, in terms of tax status, I don't think people very often move states just to claim a few extra tax breaks. (Businesses do, but marital status wouldn't be an issue there.) If it were a question of child custody issues I can see that.

[Tom]

If a church is willing to marry same-sex couples (Episcopalian), why should the federal government be involved at all? The government should not recognize any marriage. Problem solved.

[Nathan Smith]

I would support Tom's position in preference to recognizing gay marriage. To me the main threat is to a person's right to, as Vaclav Havel put it, live in truth. If the government attempts to impose a false meaning on the word "marriage," it will not necessarily be easy or safe for individuals to avoid all utterances and behaviors which condone this newspeak. For the government simply to give up recognizing marriages altogether would cause, of course, all sorts of problems, but it would not, I think, jeopardize the most important political value of all: freedom of conscience.

[ms]

No, no, no! It is a terrible idea to separate marriage and the state. Marriage serves a vital function for the state, as the founders recognized, in raising the next generation in optimal conditions. They actually regarded monogamous marriage as vital to democratic society, as opposed to polygamy, which they saw as the foundation of tyranny. Those who want to remove marriage from the state and make it purely religious would grant victory to SSM supporters because gay couples could always find some church who would marry them. Children would be the great losers. Ironically, now that the evidence is mounting the fathers and mothers are vital to the well-being of children, there is a big push to pretend that the gender make-up of marriage doesn't matter. Having raised a passel of great kids with a wonderful father, I can tell you that it does!

[Nathan Smith]

Well, I don't really care whether "removing marriage from the state" would "grant victory to SSM supporters" or not. To some extent I agree that children might suffer. But that's a consequentialist line of ethical thinking which I think has to be secondary. (In any case, children might suffer the other way, and perhaps even more: one cannot foresee all the consequences.)

There must be primary values to which one will be faithful, no matter what the consequences. For me, one of those is truth. For me, to refer to or to treat a same-sex relationship as a marriage is to collaborate is a lie, because that is simply not what marriage is. I don't mean that everyone who talks about gay marriage is lying. Others have different views on marriage, and they would not be lying if they spoke of Adam and Steve getting "married," but I would be. What I am worried about is that Big Brother will make it steadily more difficult to be a non-speaker of this 21st-century Newspeak. Of course the ideal is that gay marriage not be legally recognized: in that case, no one has to be a liar, and family law can still be administered in the traditional, by and large beneficent way. But if it's a choice between recognition of same-sex marriage and comprehensive separation of marriage and state, I would prefer the latter, because it is less dangerous to freedom of conscience.

I could be wrong...

[Nathan Smith]

It occurs to me, too, that gay marriage could be a useful wake-up call to social conservatives that they ought to be supporters of immigration. The Biblical and ethical reasons to welcome the stranger are of course compelling in any case. But think about how immigration affects the marriage issue. In most of the world, especially in developing countries (not so much in Western Europe), traditional views on marriage are overwhelmingly predominant. More immigrants from Mexico, India, the Islamic world, Latin America, Russia, and I think East Asia would surely translate into more anti-SSM voters.

This is part of a more general pattern: America can't remain America without immigration. Those who *choose* to come here have always been self-selecting for American values, at least when this effect wasn't completely erased by government controls, as may have been the case from 1924 to 1964. The native-born are prone to "mean reversion": the values of hard work, faith and family which brought our forefathers here are abandoned by their descendants. We need immigrants to renew them.

[Joyless Moralist]

"To some extent I agree that children might suffer. But that's a consequentialist line of ethical thinking which I think has to be secondary."

No, not at all! This is a matter of preserving the natural order of things, to the benefit of everyone but especially children. Biologically, children come of the union of a man and woman, and nature has powerfully inclined us to form bonds of love and loyalty with our families. Parents are naturally inclined to want to protect and educate their offspring, children to look trustingly to their parents, and spouses to be more closely unified in the common goal of raising their family. Recognizing and protecting those bonds is very much in the state's interest, since stable families are the first and most natural source of productive new citizens. There's nothing consequentialist about this line of reasoning at all. Consequentialism is about maximizing, and this is about preserving, rather than frustrating, natural human goods.

In fact, this is about truth, though not in the way that you're thinking. As in so many other cases, you see this as an issue of forcing people to be inauthentic, or insincere, or in bad faith, or whatever you'd like to call it, but there's a deeper danger that to my mind matters much more -- the danger of ignoring or subverting truths about human nature. If the state abolished marriage altogether, it would end up having to compensate for the chaos other ways... ways which, we can be sure, would end up perverting the natural order of things. What's at stake is the integrity of family life, which is a very important thing indeed.

[Nathan Smith]

Hmm. Many strange things going on here.

1. JM insists that "there's nothing consequentialist about this line of reasoning at all." But then, in the very next sentence, she goes on to say her goal is "preserving, rather than frustrating, natural human goods." This, of course, is a desirable *consequence* which the policy she advocates is meant to achieve. That's consequentialism.

To dodge this, she says "Consequentialism is about maximizing." But (a) not really, it just means trying to judge the desirability of different courses of action by their good or bad consequences, whether or not we think a "maximum" is meaningful or attainable, and (b) to oppose "maximizing" and "preserving" makes no sense, because it may be that the way to "maximize" "natural human goods" is by "preserving" them. It seems like she's trying to distance herself from the "Max U" mentality of economists by making a strawman version of the latter, but the attempt doesn't work.

2. JM seems to think she's disagreeing with me in the first paragraph, which is odd since of course I agree with almost everything substantive in it (what I just objected to being more semantic).

3. JM says I'm worried about "forcing people to be inauthentic, or insincere, or in bad faith..." Not exactly. I'm worried about people being compelled to *lie.* I am worried about a person being afraid of being fired because he refuses to introduce a colleague as Mr. X's "husband," when they believe that there is and can be no such thing as a man's husband. This is a very plain and simple, commonsensical meaning of the word "truth," I think.

4. There is no question of the state "abolishing" marriage. Is JM just being rhetorical here, or does she really not understand the difference between the state prohibiting something, and the state merely designating something as outside the sphere of its concerns? It is none of the state's business whether my friends and I call the card game we play on Saturday night "Dalmudi" or "Capitalism" or "Pond Scum," or how we may change the rules, but that doesn't mean the state has "abolished" card games; it simply takes no interest in them one way or the other. Likewise, the proposal under discussion is that the state might simply declare marriage to be outside the sphere of its concerns. This need not have any effect on the way married couples regard each other or their mutual commitments, or the way they live their day-to-day lives-- though of course, it might, and probably in undesirable ways, which brings me to:

5. JM has begged the question. I am not advocating separation of marriage and state as a first-best policy. Rather, I am saying, that given a three-way choice between (a) state recognizes heterosexual marriage only, (b) state recognizes traditional marriage AND same-sex marriage, and (c) separation of state and marriage, I would rank the desirability of the three policies: (a), (c), (b). To the extent that JM is saying that (a) is the most desirable, we are in agreement there. What I would be interested to know is: how does JM rank (b) and (c)?

[Nathan Smith]

By the way, maybe I can clarify by stating what I see as NOT consequentialist ethics. To me, the alternative to consequentialism is to embrace certain moral absolutes. For example, my argument above was motivated by the moral absolute: *Do not lie,* regardless of the consequences. Kant's "categorical imperative" might capture the idea.

The ultimate test is if you say, "Suppose that by lying, or torturing someone, you know with certainty that you will make everyone in the world happier. Would you do it?" The anti-consequentialist answer is a firm, "No, even then I would not." Of course, it's fair, and certainly plausible as well, to simply dismiss the question by saying the hypothetical is impossible.

Often people adopt a mode of moral argument where they say what they think is wrong while being agnostic about the consequences. "I don't know whether telling the truth right now will do any good to anyone, but I'll do it, because I am morally obliged to tell the truth." That is a non-consequentialist attitude.

Also, there may be a case where someone has a sort of *faith* that doing the right thing will lead to the greatest good for the greatest number, whatever that means, somehow, but they don't know how and don't think about it much, trying just to do what is right and hoping for the best. That's kind of my position on telling the truth, and perhaps there's a certain consequentialism about it, but I would call it non-consequentialist because it eschews explicit attempts at utilitarian calculus when certain moral absolutes are at stake.

[Joyless Moralist]

Okay. Half of what's called for is just clarification, so I'll do that first, even if it means taking your points out of order.

1) In its ordinary usage in contemporary ethics, consequentialism *is* about maximizing; in fact, that's more or less the short definition that's normally presented to students. A consequentialist theory identifies a particular good as being the locus point of all moral value (pleasure and happiness are the usual favored candidates) and designates as right and good whatever actions maximize that good. Utilitarianism is, of course, the main strand, though in theory I guess you could try to maximize any number of things. The very word was in fact coined by its opponents; I think Anscombe came up with it, but it's heavily used by critics like Bernard Williams, and not so much by the proponents. But anyway, my characterization is drawn precisely from those who originated the term, and this was the feature of utilitarianism (in particular) that they wanted to draw attention to -- that it was *solely* focused on the maximizing of a particular sort of consequence. (In a way, the "maximizing" part follows from the "solely" part, because if consequences are the only thing under consideration, how would you evaluate the relative goodness of different acts except by through some kind of maximizing calculus?)

You suggest that the only theories that count as non-consequentialist are those that evaluate acts *solely* on the basis of their intrinsic rightness without any regard whatsoever for consequences. In that case, I would say that Kant is not just *an* example of what you mean, but really is *the* example -- Kant and his various philosophical descendants, that is. The notion that we should act from duty alone, without regard to consequence, is Kantian through and through.

Well, I am neither a consequentialist nor a Kantian, nor do I think MS' reasoning naturally falls into either camp. In an Aristotelian/Thomist model, there's no need for the great divorce of actions and consequences, because there's another standard by which we can evaluate the rightness of our actions -- natures and final ends. This kind of moral theory is not dedicated to maximizing per se (unless you make the thing being maximized so broad as to add nothing to the theory -- goodness, say.) Neither does it propose a criterion for evaluating actions entirely independent of consequences (like Kant's rational consistency/universalizability.) We act in accord with nature, which for rational beings such as ourselves, also means discovering and respecting the natures of other things. For a Christian, we might say we try to act in accord with the order of the universe as created by God.

On a more practical level, this kind of theory will involve some absolute requirements and prohibitions (e.g. honor God at all times, love your neighbor, do not murder.) And it will also involve some evaluation of consequences. This is perfectly sensible, because while there are some things that are utterly abhorrent to our nature (murder, sacrilege), there are other times when we must choose between various per se acceptable actions, and also (as in the case under discussion), a look at the typical consequences of certain actions can sometimes be a good source of data *about* human nature.

A good example of this joint appeal to "absolutes" and more consequence-oriented reasoning is the doctrine of double effect. It starts by insisting that we may never do evil that good may come... but ends by reminding us that, when we do a thing with foreseeable negative *consequences*, we should make sure that the benefits are proportional to the costs. If your ethical theory doesn't have to be self-justifying (that is, if you have another source of morality outside the theory itself), you don't have to choose between duty and consequences.

4) When I spoke of the state abolishing marriage, I meant "abolishing marriage as far as the state is concerned", which is to say, abolishing the LEGAL institution of marriage. Sorry if that was unclear, but you know, even though I obviously think there's more to marriage than just the legal arrangement, I also think that the legal arrangement is *part* of what marriage is. Or should be a part, And for a lot of secular people, the legal aspect is virtually the only thing they have left, such that, if the state washed its hands of marriage, there really would be a sense in which marriage would be "abolished" for a substantial portion of the population. No doubt there'd still be a fair amount of coupling, reproducing and moving in together, but the idea of a special "committed" state after which breaking up is no longer really a live option (a notion, I might say, which is already growing fainter in many quarters) would probably dissipate altogether in a lot of non-religious demographics.

Now, I realize that you're not in favor of abolishing the legal institution of marriage. But it still seems to me slightly absurd to suggest that the major danger here is being forced to use terms like "husband" or "marriage" in ways that seem inauthentic (as you put it, lying.) I mean, it's sort of debatable whether that would even *be* lying. Language has some flexibility to it, so that sometimes our use of a word can be (non-deceitfully) governed by how we know our hearers will understand it, even if we ourselves privately think that the concept in question is less than coherent, and even if we have in mind a sharper definition under which the usage would be inappropriate. For example, I don't feel dishonest talking in casual conversation about what "the Lutheran church" or "the Anglican church" says or does, even though I actually think these bodies of Christians lack the kind of ecclesiology that would make them "churches" in the proper sense. I don't feel like I'm lying when referring to a "Mormon baptism" even though Rome has ruled that the relevant ceremony *isn't* actually a real baptism. In certain appropriate contexts I might feel compelled to make these points, but in common parlance, everyone understands what is meant, and no normal listener would think that I'd committed myself to the stronger metaphysical claim.

Now, mind you, I'm not *entirely* unsympathetic to your concerns here. Use of language is a tricky thing, and there are times when the use of a term *would* seem to commit you to something more stringent; in the present climate, I would not introduce someone as "Mr. X's husband." But it still seems to me like social awkwardnesses like this are a drop of water in the bucket compared to the really catastrophic effects either of fully legalizing same sex marriage, or of abolishing legal marriage entirely.

In a sense freedom of conscience is very much at stake (though unlike you, I don't value this as a purely formal quality; it makes a difference in my book whether the conscience in question is well-formed.) But awkward language issues aren't the main difficulty. The bigger problem arises in business professionals being forced to condone and support couplings that they regard as immoral, whether by snapping happy "wedding" pictures or by trying to help save a relationship that they regard as inherently disordered. Or in churches or religious schools being expected to provide the same accommodations for same-sex partners that they provide for husbands or wives -- even if that means, say, allowing a person's same sex partner to accompany them to a church camp or on a study abroad trip. (The Catholic university where I presently teach had this controversy a few years ago... they provide accommodations for the spouses of faculty members who are supervising study abroad programs, and some professor wanted to bring his same-sex partner. In this case, the school could settle the controversy by appeal to legal marriage. Only legal spouses were invited, they said, and the same sex partner was not a legal spouse.) Or in religious organizations like Catholic charities refusing to place children in homes they regard as unsuitable.

My point is that none of these problems would be solved by abolishing legal marriage. Robbing traditional families of *their* legal status would be advantageous in only one way that I can see: by making marriage legally meaningless, it might protect churches (at least for a time) from actually having to perform ceremonies for same-sex couples. But all the other problems would be seriously exacerbated. The change would only take away such ground as religious people still had for defending themselves from charges of discrimination or bigotry. There would now be *no* legal basis on which to differentiate between different sorts of couples or family arrangements, and presumably the child custody laws, anti-discrimination laws, adoption laws etc. that would inevitably have to be rewritten, would be formed in such a way as to be entirely gender-and-sexual-orientation neutral. It would be a monumental victory for the gay rights camp.

[Nathan Smith]

re: "by making marriage legally meaningless, it might protect churches (at least for a time) from actually having to perform ceremonies for same-sex couples"

It would certainly permanently protect churches from that. If marriage is none of the state's business, it follows that who gets to conduct wedding ceremonies in churches is none of the state's business as night follows day. And that alone might be enough, from my perspective, to make separation of marriage and state preferable to recognition of SSM. It seems likely that it would protect wedding photographers and marriage counselors too. The nature of their services would have to be legally re-described, and this could presumably be done in such a way as to limit their clientele to heterosexual couples. The point is that SSM advocates are using the legal category of "marriage" as a Trojan Horse to compel society to pretend that their inherently sterile relationships have the same nature as the (inarguably) natural and (potentially) fertile and family-oriented relationships of men and women, i.e. marriages. Separation of marriage and state would take this weapon out of their hands.

re: "the legal arrangement is *part* of what marriage is"

Law has meant many things in the course of history. I would guess that for most of history law in the sense with which the word is used in most modern democracies today-- statutes passed by legislatures, or precedents established by courts, with trained lawyers, judges, etc.-- either did not exist at all, or dealt only with high matters of state and would have had nothing to do with the domestic arrangements of common people. In that sense legal marriage is a contemporary innovation. Certainly social norms and customs have strongly supported marriage throughout history, and that could continue without recognition of marriage by the state. The biggest problem here, of course, would relate to how the law would deal with children.

One interesting thing is that if the state derecognized marriage, that could actually make parenthood more important. Mutual parenthood might need to evolve into an important and influential legal concept to fill in the gap left by marriage, which would actually tend to put fresh emphasis on the childbearing function of male-female couplings.

If the word "marriage" was taken out of play, it would be difficult to justify compelling adoption agencies not to "discriminate" against "married couples" on the basis of the sex of the partners. There would be no obvious reason that two-- or three, or ten!-- long-time roommates, of the same sex and with no sexual relations, would be worse candidates for adoptive parenting than a gay couple. But heterosexual couples might have an advantage, because one could argue, "We try to provide children with environments that simulate natural families as closely as possible." Of course, this involves predicting what judges will do, and at the moment it seems like judges just want to impose on society whatever the liberal agenda happens to be at the moment, and there's no limit to the badness of the arguments they'll resort to in order to do it. Still, it seems that it becomes a bit harder to make the case for gay adoption vis-a-vis heterosexual adoption if you take away the argument that "they're just another married couple!"

re: "And for a lot of secular people, the legal aspect is virtually the only thing they have left, such that, if the state washed its hands of marriage, there really would be a sense in which marriage would be "abolished" for a substantial portion of the population. No doubt there'd still be a fair amount of coupling, reproducing and moving in together, but the idea of a special "committed" state after which breaking up is no longer really a live option (a notion, I might say, which is already growing fainter in many quarters) would probably dissipate altogether in a lot of non-religious demographics."

This is a fairly strong argument. I doubt, however, that separation of marriage and state would mean that marriage would be "abolished" for a substantial portion of the population. Certainly churchgoers, for whom civil registration of a marriage is an afterthought, would be affected only in marginal ways, and many non-churchgoers still rely on churches to perform weddings. Maybe the lack of the state option would lead to more demand for church weddings, with possibly salutary results, particularly if churches used this demand as leverage to get people to listen to a little bit of church teaching and maybe attend a service or two. But also, I would expect that other social institutions would emerge to provide the sense of commitment, security, and social recognition of a relationship that even secular people seem to want out of marriage. I doubt many people would say, "Well, hey, the state doesn't recognize marriage anymore, so let's just start a family as we are." And secular wedding palaces, or whatever, might compete with each other not just by providing nice facilities, but also by doing things that make the marriages seem more authentically committed: background checks, follow-ups, marriage counseling, etc. Those that managed to keep the divorce rates of their clientele low could advertise it on TV! Divorce rates in the last half century could be interpreted as showing that the public sector isn't very good at making marriage a credible institution. Maybe the private sector could do better! :)

[Nathan Smith]

re: "In its ordinary usage in contemporary ethics, consequentialism *is* about maximizing; in fact, that's more or less the short definition that's normally presented to students. A consequentialist theory identifies a particular good as being the locus point of all moral value (pleasure and happiness are the usual favored candidates) and designates as right and good whatever actions maximize that good. Utilitarianism is, of course, the main strand, though in theory I guess you could try to maximize any number of things. The very word was in fact coined by its opponents; I think Anscombe came up with it, but it's heavily used by critics like Bernard Williams, and not so much by the proponents. But anyway, my characterization is drawn precisely from those who originated the term, and this was the feature of utilitarianism (in particular) that they wanted to draw attention to -- that it was *solely* focused on the maximizing of a particular sort of consequence. (In a way, the "maximizing" part follows from the "solely" part, because if consequences are the only thing under consideration, how would you evaluate the relative goodness of different acts except by through some kind of maximizing calculus?)"

Utility theory is interesting because it's an area where the questions are quite philosophical in nature, and yet where, strangely enough, I get the sense that economists are if anything somewhat superior to the philosophers in the rigor of their thinking. This is very unusual. When economists stray into questions epistemology (methodology) or ethics, or theory of causation, or ontology, they often make quite unrigorous statements and are inadequately conscious that in transgressing disciplinary boundaries they have turned from professionals into amateurs. One often finds a good economic analysis spoiled by bad philosophical arguments. And yet in this case I have the opposite sense: that economists know something philosophers don't, such that one feels a bit of embarrassment for the naive arguments of philosophers.

Perhaps this is not surprising, since if consequentialism is defined as "maximizing" something, well, a *maximum* is a mathematical idea, and economists have, relative to philosophers, an advantage in anything mathematical. For example, an economist is unlikely to lose track of the fact that in order for anything to be "maximized," it must be (a) one-dimensional, and (b) quantitative/scalar. "Pleasure" and "happiness" do not satisfy this criterion in any obvious way. How does one measure "pleasure?" In "utils?" Yet it is possible to observe the choices people make and deduce their preferences. This is the method of "revealed preference." One could also, in principle, conduct a questionnaire, although economists tend to think that if a person says they would prefer A to B but, when faced with the choice, actually chooses B instead of A, the action and not the utterance is to be trusted.

Pleasure and happiness are not measurable; apples, Cokes, cookies, cars, kisses, and lawnmowers are. But of course, no one tries to maximize their apples, cars, or even kisses. What people want is multi-dimensional, and yet people are able to make choices between different kinds of goods. They can, in defiance of the truism, compare apples and oranges. They do it every day in the supermarket, when deciding whether apples for $2/lb. are a better deal than oranges for $2.50/lb. This suggests the possibility of creating a "utility function," which boils down all the things people want out of life into a single, scalar variable. This they seek to "maximize," but the variable has some odd properties, for example its values have only "ordinal," not "cardinal," significance: it is meaningful to say that consumption bundle X gives me "more" utility than consumption bundle Y, but not to say that consumption bundle X gives me "twice as much" utility as consumption bundle Y.

This is what I mean by saying that JM's argument is consequentialist. JM seems to have a utility function, i.e., some preference ordering over the desirability of different possible world-states, and in selecting the one which "preserves" certain "natural human goods," she is maximizing her utility function. An uber-Kantian might be said not to have a utility function over states of the world; he simply does what's right, never mind the consequences. He cares only about *actions,* not effects. But JM is a utility maximizer.

Now, to this JM may say that I am "making the thing being maximized so broad as to add nothing to the theory -- goodness, say." But first, economists do make the thing to be maximized very broad, and still manage, I think, to make a good deal of theoretical progress. Anyway, a sensible consequentialism really has no other choice. "Pleasure" is either an unwarranted restriction of human desiderata, or else it is a primitive synonym for the utility function. For people can get pleasure from many things, and pleasure itself is not observable to outsiders, nor quantifiable even to the person experiencing it.

Of course, one might be Kantian about some things and consequentialist about others. To put it another way, one might be a utility maximizer with moral side constraints. My rule may be: make as much money as possible, without lying. Or: have as much sex as possible, but only within marriage. As far as I can tell, JM's ethical position is basically one of maximizing a certain utility function subject to moral side constraints. She seems to think that the "Thomist/Aristotelian" position is special and distances her from such alternatives as modern economics has to offer, to which it is not reducible. This is what I don't understand.

[Tom]

I'd like to address the merits of state sponsorship of marriage. In short, it's perverse, though it's not obvious to most people why.

Families and committed relationships are a good to society and Humanity, so intuitively it makes sense that they should be encouraged. However, since they are good in themselves, they shouldn't need any additional exogenous incentives. People should get married because they're in love, because they want to be committed to each other, because they want to start a family, etc. But when there are other incentives to get married separate from the inherent good of marriage, then you increase the chances of the marriage being perverted. When you subsidize commitment, you have to ask yourself what exactly is being committed to, family or the subsidy itself?

Allow me to demonstrate my point using some extreme examples. Let's say the government actually pays people a non-negligible amount to be married (as it does for people in the military, incidentally). Certainly, there will still be a lot of people getting married for the right reasons, but there will also be people getting married specifically for the money. I have personally observed this effect in the military, and it's not a coincidence that the divorce rate in the military is much higher than it is in the general populace. This sort of effect hurts the institution of marriage and hurts families more than it helps them. Now let's say the government taxes marriage heavily. What is the end result? People better really want to be married in this case because they're paying a stiff price for a bad relationship otherwise. This sort of policy would be hard on the poor and deepen class envy, but it's worth noting that historically a large price tag has been attached to marriage. Once upon a time, dowries were all the rage, and if the two parties couldn't come to an agreement on the dowry, then the marriage wouldn't happen. I imagine it was extremely important to make sure that what you were buying with the dowry was top quality, and if it was top quality, then the marriage would most likely be good (for one of the sides, anyways).

I think the best policy is to have neither incentives nor disincentives for marriage, as you get the best of both scenarios: it's universally accessible, and it's not perverted.

[Joyless Moralist]

"It would certainly permanently protect churches from that. If marriage is none of the state's business, it follows that who gets to conduct wedding ceremonies in churches is none of the state's business as night follows day."

Ah yes, but you're assuming that laws and judges are always going to be *logical!* I won't press this point at length, but it just seems to me that the development of certain kinds of anti-discrimination laws, together with an increasing tendency to view churches above all as "service providers" could potentially put even that one advantage at risk. But whatever, that's not an important part of my argument. My bigger point would be that, while it might be *possible* to construct laws sans legal marriage in such a way as to avoid unfair pressures on religious people to violate their beliefs, there's no reason to believe that this would happen -- quite the contrary. As recent history has shown, the word "marriage" still has powerful significance, and lots of people who in other contexts are fairly okay with homosexuality, still have traditional associations with the word "marriage" that they're reluctant to forget. Even if gay marriage were to be legalized everywhere, I think it would be a lot less like, say, no-fault divorce (which mostly became widely accepted in fairly short order in every state in which it was legalized), and more like abortion, which continues to be one of the most emotionally charged, controversial issues in this country even though the legal status hasn't changed appreciably for decades. If you managed to clear legal marriage off the table, however, gay activist groups would immediately begin working for other kinds of anti-discrimination legislation to make sure that marriage counsellors and wedding photographers *couldn't* restrict their clientele to heterosexuals, and that adoption agencies had to use some kind of "neutral" criteria (income, age, etc.) to select adoptive parents. It seems extremely unlikely to me that religious people would come out ahead here.

Gay marriage has at times (as in Boston) been used as a weapon against religious organizations... but legal marriage still remains the best possible weapon to use in fighting back, against this and all sorts of incursions upon the welfare of families. So, I guess I wouldn't say that all possible worlds in which we have legal marriage are better than all possible worlds in which the state has stopped recognizing it, but I do certainly think that the abolishment of legal marriage is an alternative that we should look on with abhorrence.

As for the philosophical debate... what can I say? You make reference to a philosophical theory, then say that it's incoherent. I'm not at all inclined to jump to its defense, since I do think that consequentialism is basically facile and ultimately incoherent, but the theory I'm describing is what, in ethical discussion, the term "consequentialist" refers to, and some of the things you've labeled as nonsense (for example, that we should seek to maximize things such as different pleasures, that aren't commensurable and can't be definitively measured) are precisely what famous consequentialists like JS Mill want to say. Take it up with them, but don't put me in their camp because I'm not.

Nor do I think it's actually right to say that I'm "maximizing natural human goods with certain moral side constraints." That makes it sound like the natural goods are somehow the real goa, or the primary mission, which really isn't right. What I want is for people to live in accord with their nature and fulfill their telos. Securing natural human goods is relevant to that, and the nature of acts/motivations is also relevant. Neither is primary per se. And the truth is, in normal everyday life, this is a perfectly normal way to think. We understand that certain actions are inherently noble or base, and we also understand that the consequences of our actions matter. So we consider both, sometimes with a fairly complex relationship between the two. That's perfectly natural. The only reason why the moderns feel compelled to pull these apart is because they have no external standard (like a final end) to explain the origin of moral value. So they have to try to build it into the system, either through some kind of crude maximizing, or else through an appeal to rational consistency.

Maybe you could say that I'm "maximizing states of affairs in which the natural human good is achieved." But absolutely any moral theory could be described as "maximizing" under descriptions that broad. A Kantian is "maximizing states of affairs in which people have good wills and act in accord with duty." If your clever economists can still do something interesting with this, good for them, but it's silly to call us all consequentialists because of it.

[Joyless Moralist]

It seems to me, Tom, that what you want is *not* to give people overly attractive extra incentives to *get* married, but after they're married, to make it as easy as possible for them to stay that way. I've actually heard people say, of smaller conservative/religious communities like Mormons have that, "well, sure, those people stayed married for decades, but in those communities it's much easier. All the rules and social conventions are set up to encourage/pressure people to stay married. In the real world it's much harder."

I don't know what "the real world" is here, but... what's bad about the Mormon set-up? Generally speaking (and yes, there are occasional exceptions, such as abusive situations) it's much better for people to stay married. Married people are generally healthier and (by their own report) happier, and divorce is expensive and emotionally crippling. And obviously for children it's much better for their parents to stay married. So why is it bad to set up social expectations, and even tax codes, to make it easier/more attractive for people to do this? I mean, yes, paying people a large up-front sum to get married, and then leaving them to themselves, would probably lead to a lot of bad faith marriages. But smoothing the road a bit after the ceremony, insofar as this is possible, seems perfectly fine to me. There are plenty of the reverse kinds of pressure in modern society already.

Anyway, legal marriage isn't just about tax codes. There are other issues (inheritance laws, child custody issues, alimony laws, etc etc) that depend on having some kind of legal recognition of marriage.

[Joyless Moralist]

And by the way -- you can correct me if this is wrong -- but it seems to me that military marriages wouldn't be a great test case anyway. They're already subject to much more severe pressures, on average, than most other marriages would be (long periods apart, lots of moves, etc), so it's not surprising that the divorce rate is higher.