Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, February 16, 2010

SSM and moral opposition to same-sex sexual conduct

Michael Perry asks a good question, "Who but one who believes that same-sex sexual conduct is immoral will think it is  legitimate, that it is just, to deny access to civil marriage to the same-sex couples who intend for their unions to be lifelong, monogamous unions of faithful love, because there are other same-sex couples who do not so intend?"  I'm interested in the related but broader question: what percentage of people who oppose SSM believe that same-sex sexual conduct is immoral?  I'm guessing that it's a pretty high percentage, but there are noteworthy exceptions.  David Blankenhorn, for example, writes:

I reject homophobia and believe in the equal dignity of gay and lesbian love. Because I also believe with all my heart in the right of the child to the mother and father who made her, I believe that we as a society should seek to maintain and to strengthen the only human institution -- marriage -- that is specifically intended to safeguard that right and make it real for our children.

Legalized same-sex marriage almost certainly benefits those same-sex couples who choose to marry, as well as the children being raised in those homes. But changing the meaning of marriage to accommodate homosexual orientation further and perhaps definitively undermines for all of us the very thing -- the gift, the birthright -- that is marriage's most distinctive contribution to human society. That's a change that, in the final analysis, I cannot support.

I still struggle with the move from "adoption as concession to fallen world = very good" to "adoption as the child-rearing norm for a new type of marital relationship = so bad that the relationship threatens the well-being of children."  But it is this type of argument on which the SSM debate will rise or fall, I think.  In public policy debates, for better or for worse (and I know Robby would say for worse), it seems that everyone is a consequentialist now.  Are some of the consequentialist arguments shaped by moral opposition to same-sex sexual conduct?  No doubt.  But they still need to be engaged on the merits.  In the end, the outcome of the debate may turn on the question, "Who bears the burden of proof?"  Those who wish to change the longstanding definition of a social institution to include citizens who currently cannot participate given their sexual orientation, or those who believe that the institution's value to society derives in significant part from the nature of the procreative relationship between a man and a woman?

https://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/ssm-and-moral-opposition-to-samesex-sexual-conduct.html

Vischer, Rob | Permalink

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"In public policy debates, for better or for worse (and I know Robby would say for worse), it seems that everyone is a consequentialist now. Are some of the consequentialist arguments shaped by moral opposition to same-sex sexual conduct? No doubt. But they still need to be engaged on the merits."

Rob--it seems, though, that the turn our constitutional jurisprudence has taken forces everyone to be a consequentialist. Due process, equal protection, important purpose, compelling purpose...isn't this all the language of consequentialism?

Posted by: Don Altobello | Feb 16, 2010 9:02:47 PM

Good point, though I think the consequentialism is found throughout our public policy debates even when not driven by constitutional concerns. In my own experience, even when talking to folks who do not think that SSM is constitutionally mandated, it is hard to get traction for arguments about the nature of marriage unless that nature is tied to some discernible harm.

Posted by: rob vischer | Feb 16, 2010 10:52:19 PM