The Supreme Court, Gay Marriage, and Prisoners of Plato’s Cave Arguing About Shadows
Despite my best efforts to ignore the subject, I’ve been forcibly informed that on Tuesday, March 26, 2013 the US Supreme Court will begin hearing arguments on the pending gay marriage case. The case interests me no more than the arguments amongst prisoners in Plato’s cave about the shapes of shadows flitting on the wall (Republic 7.514ff).
One group with a childish concept of ‘rights’ will face another with an equally erroneous concept of ‘morality.’ No arguments based on logic or explicit first principles will be raised. The names associated with the foundations of moral philosophy, names like Plato, Aristotle, Zeno, Epicurus, and Cicero, will not be mentioned. One faction of a dumbed-down, culturally illiterate society will square off against the other. They should name the case Folly vs. Folly.
Her blindfold will spare us seeing Lady Justice roll her eyes in exasperation.
I suspect the Supreme Court will ultimately endorse gay marriage, since, Reason long since having fled the halls of the Court, the matter will be decided politically. If so, some good may come from the Supreme Court placing itself so far out on a limb that all Americans will start to see that it is better for us have these issues decided by logic and good-will, not animosity, power-politics, and the machinations of demagogues.
But since Fate has thrust the matter before me, I will weigh in on it.
Proponents of gay marriage assert that marriage is a right. Now is this true? Is it obviously true? Should we not begin by defining what a right is, and then supply a reasoned argument why marriage is a right?
And if marriage is a right, is it a civil (legal) right or a natural right? A natural right is an inalienable right, one that exists, say, in a state of primitive nature before governments are instituted. Consider this example. If two strangers (let’s say a man and woman, just to keep the example simple) accidentally wash up on a deserted island and then decided to start making babies, they would not, and could not, be married. Marriage would have no meaning. Marriage is a category that produces a relationship of a pair of people to the rest of society. If there is no society, it is meaningless to speak of marriage.
Now someone might reply. “No, you are wrong. It is God who marries two people.” Well, fair enough — we can easily clarify that. Marriage exists both as a religious and a secular institution in today’s society. We are not considering here the issue of religious marriage. That is for churches to consider, not the Supreme Court. Our focus of attention here is exclusively secular marriage, of the kind that would require two people to get a marriage license, register at City Hall, check “married” on a census survey, etc.
Now since, as our example suggests, a secularly defined marriage does not exist without a society, it would appear to be more a civil right than a natural right. Again: having sex is a natural right; but being designated by society as “married” is not a natural right.
This suggests that marriage, if a right at all, is a civil right. Civil rights are decided by legislation. There is nothing inherent in the nature of civil rights that unconditionally demands that all people, in every case, are entitled to exactly equal treatment. Cases in point: children are not allowed to drink alcohol; felons are not allowed to vote (in some states). But let’s stop with this. There is plenty of room to argue either way here — that gay couples should or should not, based on issues of justice and society’s best interests, enjoy a civil right to be married. This should be discussed, but it should be done in a constructive and unprejudiced manner.
However it must also be asked whether marriage is a right at all. There are other paradigms for looking at marriage which seem at least as plausible.
We can, for example, see marriage as a privilege. Let’s again consider the state of a primitive, aboriginal society, before the development of a formal government. In a clan or small tribe, we can likely find examples of the principle that not everybody is sanctioned by the community to be married. Consider the nature of marriage: it is a ceremony attended by many others, perhaps the whole village. It is a cause for community celebration. There are dowries to be paid. Moreover, the married couple typically must show some evidence of being able to contribute to the life and welfare of the community — as judged by the standards and values of that community. In the traditional wedding ceremony, we still have the part that says, “if anyone has any just reason why this couple should not be united, let them speak now or forever hold their peace.” Presumably this part is in there for a reason. Doubtless there have been many times when this option has been exercised. Any number of objections might be raised. “The man is a lout, an alcoholic!” “The woman is unfaithful!” “They are both lazy good-for-nothings, who never help with the community labor, and will do nothing but produce more mouths to feed.” The point is that the community has some, and perhaps a great deal to say about who should be allowed to be married. If marriage is a privilege, how else is a community to decide this except by legislation, or at the ballot box. That is what the citizens of California did: they went to the ballot box, and the majority voted against gay marriage.
Do I agree with that? I’ll say this much: that an issue like this is of sufficient gravity that it should not be decided merely by a simple majority vote. Here is a case where a super-majority — say a 2/3 or 75% majority might demonstrate sufficient consensus to decide an issue.
Or what if, along similar lines, we see marriage as an award, an honor granted to certain couples based on merit? If we go back to the origins of marriage in primitive society, that is not an entirely implausible model, and not one that should be dismissed without fair consideration. If a young couple has made a sufficiently good impression on their family and village, people will help them out with a place to live, gifts, etc., as though to say, “we’d like to have more people like you; get working on it!”
In that case it is absurd to claim that everyone is entitled to “equal treatment under the law.” If marriage is an award, then one can no more insist that everyone is equally entitled to marriage than that everyone equally deserves a ticker-tape parade just because an astronaut gets one, or a reception with the president because the Super Bowl winners get one. But, you might ask, who decides who gets the ‘award’ of marriage and who doesn’t. That is society’s prerogative, just as in the case of other awards.
No doubt in the Supreme Court case someone will raise the issue of uniform enforcement: if a gay couple is married in Massachusetts, and it isn’t honored in California, that will make the administrative tasks of the federal government impossible. That is a specious argument. By this reasoning we should simply eliminate the individual states altogether as administratively inconvenient, and adopt a single, uniform national code of law. Further, by such reasoning any state could pass a strange law concerning marriage (e.g., permitting marriage for children under the age of 12) and the other states would have to honor it.
There is one potentially interesting topic likely to emerge in the case. If gay marriage is considered a right based on “equal treatment under the law,” how can society then deny a right to polygamous marriage? What will be interesting is to see the fancy footwork as the pro-gay marriage attorneys try to side-step that question.
Meanwhile the United States is in a state of perpetual war, a matter which concerns all our welfare and basic issues of justice 100 times more than the issue of gay marriage.
No comments please. This subject hold no interests for me. I write only to bemoan the fact that this topic is being mishandled by all parties.
Written by John Uebersax
March 25, 2013 at 12:55 am