Wednesday, February 25, 2009
A reader responds to my post on SSM, suggesting that we:
construct laws and confer benefits that encourage folks to care for one another: let me carry my brother on my health insurance and put him up in my house, and let him get auxiliary Social Security benefits on my record, should we choose to throw in our lot together and enter into one of these arrangements. Let me do the same with my wife. I'll "marry" her in the Church, and then "register" my partnership with the same woman with the government to take advantage of whatever gov't benefits society wants to bestow on folks who pledge to look out for one another. In this dream world, the word "marriage" would not even appear in the government calculation. The Church and other private actors would concern themselves with marriage. The government would simply ask: who have you thrown your lot in together with so that you pledge to take care of each other. That other person could be a relative, friend, or sex partner who you married in a Church, or all of the above.
construct laws and confer benefits that encourage folks to care for one another: let me carry my brother on my health insurance and put him up in my house, and let him get auxiliary Social Security benefits on my record, should we choose to throw in our lot together and enter into one of these arrangements. Let me do the same with my wife. I'll "marry" her in the Church, and then "register" my partnership with the same woman with the government to take advantage of whatever gov't benefits society wants to bestow on folks who pledge to look out for one another.
In this dream world, the word "marriage" would not even appear in the government calculation. The Church and other private actors would concern themselves with marriage. The government would simply ask: who have you thrown your lot in together with so that you pledge to take care of each other. That other person could be a relative, friend, or sex partner who you married in a Church, or all of the above.
Aidan O'Neill writes to add a European perspective to our conversation on the treatment of same-sex couples (I've edited his remarks for length):
First the Girgis/Anderson/George proposal is nothing new. It has been adopted in France with their regime known as PACS which is open to any two adults to register for mutual rights and responsibilities. Although intended for gay couples, the French church’s opposition to the proposal resulted in its being open to any two person regardless of sex or consanguinity. The result has been – predictably – that it has been taken up with fervour by unrelated opposite sex couples who wish to have some mutual rights and responsibilities but could do without the expense of divorce it all comes to grief. Thus it has become the very “marriage-lite” and has undermined “traditional marriage” which the SSM opponents fear. See the report in the Telegraph for the most recent statistics.
Great news! One of (I think) the best novels of the 20th Century -- "Silence", by Shusaku Endo -- is being made (by Scorcese!) into a movie (starring, inter alia, Daniel Day-Lewis and Benicio Del Toro, two of the best actors working). I can't wait. Please, oh please . . . don't mess this up, Marty. More here. And here. (Thanks to dotCommonweal for passing on the news.)
Tuesday, February 24, 2009
The Washington Post reports that technology is being developed that allows genetic testing for Down Syndrome to occur earlier in pregnancy and with more accuracy. Two contrasing perspectives in the article:
"For 50 years, folks have been working to develop a noninvasive genetic test for Down syndrome," said Sequenom chief executive Harry Stylii. "People have described it as the Holy Grail of genetic testing. We are on the cusp of delivering that."
It's a "Holy Grail" with some ominous implications, of course:
"We have a nation of physicians who are unprepared for explaining a diagnosis of Down syndrome," said Brian Skotko, a physician at Children's Hospital in Boston who works with the National Down Syndrome Society. "Many overemphasize the negative consequences or outright urge women to terminate their pregnancies."
Skotko, whose sister has Down syndrome, predicted such tests would result in fewer babies being born with the condition. "Every day my sister teaches me lots of life lessons -- to laugh when others are mocking me, to keep on trying when obstacles are thrown my way," he said. "If there were a world with fewer people with Down syndrome, I think the world would miss all these important lessons."
I appreciate Ryan Anderson and Sherif Girgis's thoughtful response to the Rauch/Blankenhorn proposal, but I confess that I still have a hard time figuring out why we should treat a same-sex couple more like a pair of elderly sisters than like a married heterosexual couple. Here's how Anderson and Girgis articulate the importance of heterosexual marriage:
As a community of husband and wife founded on a bodily union whose natural fulfillment is the conception of a child, marriage not only fulfills human beings as embodied, sexually complementary persons; it is also oriented to the bearing and rearing of children. Because those children are society’s youngest and most dependent citizens, the public has an interest in healthy marriages. So legally and socially enforcing marital norms makes sense. By attaching a father to his children—and to his children’s mother—exclusively and for life, marriage serves society’s interests by securing for children the love and care of both mother and father. A well-ordered society thus supports marriage as an institution that fulfills the adults who choose to enter it and serves the children who may come as its fruit.
I agree with this portrayal of marriage's importance and why the state has an interest in encouraging and stabilizing marital norms, but why does that interest not extend to same-sex couples? Their bodily union is not "naturally fulfilled in the conception of a child," but that does not make them ill-equipped for the raising of a child, and the state surely has an interest in that endeavor. I have not seen a persuasive case made that same-sex couples are ill-equipped for the raising of a child, and my own (limited and fallible) experience pushes me toward the opposite conclusion. Assuming that likely candidates for same-sex marriage are not likely candidates for traditional marriage, don't the state's interests in the social and personal functions of marriage also suggest that the state has an interest in encouraging similar commitments among gays and lesbians? If it boils down to the nature of the sexual union, why should we be surprised that folks like Nussbaum reach the conclusions they do (i.e., that it's really about condemnation of gay sex)?
None of these arguments are new, of course, but for me, it boils down to: why is the social function of marriage threatened by making it available to a category of people who cannot currently participate because of the nature of their sexual attraction? Expanding marriage's accessibility, one would think, also makes it more central to the social order. In order to hold otherwise, one would have to show that same-sex relationships subvert the social function of marriage in meaningful ways. I don't think the nature of the sexual act argument is convincing, nor have I seen persuasive evidence to support the argument that same-sex couples are incompetent parents.
On Friday, March 13, Brigham Young University and Boston College (through their respective law schools) will host a one day symposium on the Jurisprudence of Marriage. The symposium will be convened at the Newton Campus of Boston College where the Law School is located. The program promises to be an interesting and timely one, and it is expected that the contributors will offer diverse perspectives on the topic of marriage. The details of the symposium are HERE. Mirror of Justice friend Professor Scott FitzGibbon is one of the convenors. MOJ contributor Richard Stith will be presenting a paper, and I will be offering one regarding the question of equality. I hope that the symposium will attract contributors and readers of the Mirror of Justice who may be in the area on that day to attend at least some of the presentations.
Rob asks, with respect to the Rauch / Blankenhorn proposal on SSM, "what's not to like?" Over at Prawfsblawg, there are some interesting responses in the "comments" box. And, at Public Discourse, Ryan Anderson and Sherif Girgas weigh in. and suggest an alternative:
The revisionists would agree to oppose the repeal of the Defense of Marriage Act (DOMA), thus ensuring that federal law retains the traditional definition of marriage as the union of husband and wife, and states retain the right to preserve that definition in their law. In return, traditionalists would agree to support federal civil unions offering most or all marital benefits. But, as Princeton’s Robert P. George once proposed for New Jersey civil unions, unions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.
Regular MOJ reader Marc DeGirolami (who also attended the Scarpa Conference) has the following contribution in response my recent post regarding Professor Nussbaum's and Professor Stone's remarks regarding same-sex marriage:
I noticed your comment about Professor Nussbaum's comment, late in the day, that the only (or perhaps the best) way to explain opposition to homosexual marriage is by understanding it as a manifestation of disgust or the crude fear of "contamination" by those on the other side of the issue.
In reacting to Professor Nussbaum's remarks, you take offense, and I can certainly understand why. Professor Nussbaum meant the characterization as a denigration -- the claim being that if one is opposed to homosexual marriage, the only conceivable reason must be something as irrational as disgust, since the arguments against homosexual marriage are so weak as not to be taken seriously.
But I wonder whether, quite apart from the merits of this particular question, you both are shortchanging the value of disgust. Disgust, like shame, can be quite worthwhile. This was essentially the point made in a review of Professor Nussbaum's book, "Hiding From Humanity: Disgust, Shame, and the Law" written a few years back by John Kekes in the publication, Mind. There are types of behaviors about which we feel disgust for entirely rational reasons -- they richly deserve the feelings of disgust that they engender because they violate very basic social and civilizational norms. It's entirely appropriate to feel disgusted by a murder, or an act of terrorism, or an act of incest, pedophilia, or bestiality (some of these are examples given by Kekes, to which I would add torture, cruelty and the sadistic humiliation of others, and much other behavior). Not all feelings of disgust are like this, of course, but it won't do to trot out "disgust" any time you disagree with someone else's position on the question of the day. The reason that it is unsatisfying to make this move is not that disgust is invariably an irrational reaction and that by leveling the charge of disgust you are failing to treat the other person and his/her views with "respect" (a subject of at times overpowering interest at the conference). Instead, the "disgust" move doesn't work because disgust may well be quite rational -- indeed, it may be precisely the right thing to feel -- and it remains to explain why it is not so in the given situation.
To be clear, I should state that none of this is meant remotely to suggest that one ought to (or that I) feel disgust (or shame) about homosexual marriage. In point of fact, I emphatically do not. But I do think that there is a considerable class of cases in which both disgust and shame are precisely the appropriate reaction. An accusation of disgust in such contexts, even if intended as a slight, should be met with cheerful, even vigorous, assent.
Monday, February 23, 2009
Steve Shiffrin provided a nice summary of the Scarpa Conference that took place last Thursday at the Villanova Law School. (It was great to see Steve together with a number of other fellow MOJers such as Michael Scaperlanda and Rick Garnett!) MOJer Patrick Brennan is certainly to be congratulated for organizing this splendid event, the title of which was borrowed from Martha Nussbaum’s book Liberty of Conscience. Fittingly enough, Professor Nussbaum, delivered the key note address and responded to the other conference speakers.
One of the respondents was Nussbaum’s colleague at the University of Chicago, Geoff Stone. Professor Stone claimed that although some arguments against same-sex marriage may appear to be secular in nature, all such arguments are in fact ineluctably religious. Indeed, as Professor Stone pointedly told one student who raised objection to Stone’s claim, if one digs deep enough, one will find lurking behind all such arguments, the dark shadow of intolerant religious belief – and if one does not reach this conclusion then one is either “a fool or a knave.” Stone admitted that it would often be difficult to prove that religious intolerance was in fact the true motivation at work, but he assured the audience that this motivation was nevertheless always present and operative.
In her remarks at the end of the day, Professor Nussbaum expressed what appeared to be a sincere interest in engaging in serious conversation about same-sex marriage. In replying to Professor Stone’s remarks, however, she said that she would reach the same conclusion as Stone but by a different route. Nussbaum claimed that opposition to same-sex marriage was not based on religious premises so much as a visceral reaction of “disgust” to the very idea of same-sex relations. That is, notwithstanding the ostensibly moral and sociological arguments made against the legal recognition of same-sex marriage, Nussbaum confidently asserted that what really lies behind this opposition is a sense of revulsion toward the physical act of same-sex relations, an act which “defiles” the human body such that it is cause for “disgust.”
What I find disgusting is the notion that these sorts of claims are what pass for serious argument today. Sadly, both Nussbaum and Stone’s strategies for debate demonstrate an approach that has become all too common in the public square, and even in the academy. Rather than engage the substance of an opponent’s argument, one imagines the true motive behind the position asserted. This motive invariably proves to be illegitimate so that the opposing point of view can be readily dismissed.
One hopes that Professor Nussbaum is sincere in her desire to have a serious and engaging conversation about same-sex marriage. (There are, it should be noted, advocates on both sides of the issue who do not want to have such a conversation – individuals and groups who would prefer to vilify and caricature the opposition so long as such methods resulted in political victory). A genuinely serious conversation about this or any other similarly sensitive topic must begin with an effort to bring together people who approach the subject from very different starting points.
Let me suggest to both Nussbaum and Stone, however, that if they do wish to have such a conversation, they would be well advised not to begin the process by calling into question the intelligence and good faith of their opponents. Indeed, the place to begin is not with name calling (“fool or a knave”) or with amateurish efforts to psychoanalyze the true motives at work in the mind of one’s opponent. To reduce our public discourse to the employment of these sorts of strategies would truly be cause for disgust.
Rick says, “Is the rule simply that "the government may never say, 'we are doing this because a particular religious authority has commanded it'?" If so, fine. Whatever the Establishment Clause means, really, I'm happy to go along with the proposal that it should mean this. But, I assume that instances of such proclamations are going to be few and far between. What about "we are not going to fund embryo-destructive research because such research is inconsistent with the dignity of the human person, properly understood"? Such a statement says nothing about "religious authority". What would Steve S. say to, say, Geof Stone, who believes (if I remember correctly) that such a statement can only be based on religion, and so the policy for which it is offered is unconstitutional?
The short answer is I do not agree with Geof Stone. Bans on embryo-destructive research or gay marriage do not violate the Establishment Clause (the latter was the main issue in his talk) though a ban of the latter raises questions under other clauses. (I assume that much of the Utah penal code and the Civil Rights Act of 1964 proceeded from religious premises of the citizenry, but this does not make such legislation unconstitutional). On the other hand, when government decides to display the Ten Commandments, the very selection of which version to display is itself a theological act which should be no part of the govrnment’s business. I agree with Rick though that government forays into the theological are by no means typical.