January 06, 2004

"Sacred" Marriage

Andrew Sullivan has a point about the sanctity of marriage:

We live a world in which Britney Spears just engaged in something "sacred" (in the president's words), where instant and joke hetero marriages and divorces are a subject of titillation, and where a decades-long monogamous lesbian marriage is a threat to civilization as we know it. Please.

I understand why he's infuriated, which is why I voted in this poll by the AFA. I voted for civil unions rather than straight-up marriage for gays mostly because I think that government should pretty much get out of the marriage business completely and leave it to religions. Right now, much to the AFA's chagrin I'm sure, the poll is running 60% for legalization of marriage, 33% against, and 8% for civil unions with the full benefits.

Posted by richard at January 6, 2004 01:16 PM

Civil unions for everyone is an interesting take. I voted for outright marriage on an equal rights basis: what is good for a goose and gander should be good for two ganders. But I like your idea quite a bit: let unions in the eyes of the Law and the eyes of God be separate and conceptually distinct.

What do you say to the idea that all Law should be stripped of moral and religious influence? That is, it is not enough that a majority of people think that certain conduct is "bad" and ought to be proscribed. Law, that is, the intrusion of the state into human affairs, ought to be reserved for situations where state intervention makes society better than otherwise. There would, for example, be a basis for a law against murder (because no one wants to be killed), leaving aside assisted suicide (where the victim wants to be killed). The "Thou shalt not kill" rationale withers — it is vestigial: an important moral precept, but no basis for law. Conduct involving consenting adults would not be subject to regulation solely on the theory that third parties don't like it (or because their God says so).

There are complications, of course — are prostitutes really consenting to sex? Are drug addicts choosing, of their own free will, to shoot up, or are they physically compelled to do it? But it seems to me this is intellectually coherent, socially progressive, and quite possibly the course the Supreme Court is charting. By the time we've marked off the limits of Due Process we may well have finally adopted Mill's distinction between self- and other-regarding actions as the marker between appropriate and inappropriate state action.

I don't think that would be such a bad thing. There would certainly still be a time and place for moral argument: we just wouldn't have to hear it from politicians anymore.

Posted by: Brad A. at January 6, 2004 06:58 PM

Well, doesn't the difficulty then become, what does "better for society" mean?

One option, which sounds like you're talking about, would be a more consequentialist and less deontological basis for the law — and I agree that we could do a lot worse than John Stuart Mill's Harm Principle, despite its problems.

However, it still won't stop the debate about whether homosexual marriage harms people, or as Sullivan puts it, "is a threat to civilization as we know it".

I've always thought that a society that prohibits less is a more moral society. If I am "good" simply because I fear punishment, I do not consider myself "moral" — I'm just self-interested.

Temptation is an important part of moral life — you can only reject that which you could have chosen. The Amish embrace this with their practice of Rumspringa, during which young adults experience the "Devil's Playground" outside their community and decide if they want to be Amish or "English".

I would be happier with an America that prohibited less and saw morality extolled through other institutions, ones that don't have the monopoly on coercion that the state does.

Posted by: richard at January 6, 2004 07:39 PM

You nailed the weakness of my post: "societal good" is sort of mushy, and you could argue that society does good by not having 60% of its members go apoplectic about gay marriage. And anything that makes people go apoplectic is certainly other-regarding. Makes you understand the compromise behind "don't ask/don't tell" — do what you want, but don't put anyone else in a position to go apoplectic.

I guess I was sort of envisioning the basis for law evolving in a sort of Kohlberg progression. I kind of like Stage 5 (appropriately named "Social Contract"), where what we allow and forbid doesn't incorporate what some — or even most — people think about God. When we decide whether a law does harm or good, harm that follows from offense to one's personal moral or religious views doesn't count into the calculus.

But again, everything is mushy. It's my belief that the marijuana ban is an economic regulation at its heart: there's no proof it's a gateway drug, and we let people smoke and drink, etc. Some would say the intrusion is justified, because if a larger portion of the community were potheads, capitalism would suffer, and we'd all be using inferior widgets and we'd be miserable. Everything is other-regarding, ultimately, but for manageability purposes you want to draw a line in the sand. Where that line goes introduces arbitrariness into the theory.

Damn. Oh well — dinnertime.

Posted by: Brad A. at January 6, 2004 08:05 PM