It is interesting how a very specific moral issue, whether or not men should be allowed to marry men, or women to marry women, can focus a whole serious of ethical questions and carry us into the heart of several debates concerning sexuality in our society.
The Kentucky House of Representatives in 1998 passed, 84-9, a bill that would ban same-sex marriages in Kentucky. As with other debated moral issues, a majority can be wrong. If we were to put this class into a time machine and take it back fifty years we might be having a debate concerning whether the schools should be integrated. It would take a bit of courage to demand that the arguments in favor of integration be given equal time and attention with arguments in favor of segregation. It would be uncomfortable, but morally necessary, for people who are emotionally involved on each side of the debate to listen respectfully to the views with which they disagree.
Russellville legislator Sheldon Baugh, who sponsored the bill banning same-sex marriage, is quoted in the (3/21/98) Park City Daily News as saying that tradition and the sanctity of marriage would be threatened if same-sex marriages were allowed. Same-sex marriage (henceforth: SSM), he says, "flies in the face of what's served mankind for 1,000 years." He is also quoted as follows: "If we change that law, then what's to say we have to have an age limit, or not have multiple partners, or (limit marriage) to human beings."
We have in Rep. Baugh's remarks hints of three common arguments against SSM:
1) It's contrary to tradition, the way it's been done for a long time.
2) It's contrary to religion (the "sanctity of marriage" argument).
3) The Domino Effect argument: in this case, we start with SSM and, before you know it, marriages with 10 year olds or your horse are now allowed.
Rep. Baugh had the political majority in the 1998 legislature on his side, but it is our job, as an ethics course, to examine these arguments and any others there might be as impartially as possible.
Martha Barnette's letter ("The Bogus Reasons Gays Can't Wed," March 9, 1998, Lexington Herald-Leader) can help us do that. Though she definitely is not neutral in the debate, her letter is in one key way a model of ethical argument. It would allow us, even if we had no other sources, to figure out the arguments being made from the perspective with which she disagree's, i.e., Rep. Baugh's side.
[3] refers to the tradition and religion arguments. (Bracketed numbers refer to the paragraphs in Ms. Barnette's letter. I have added the numbers for discussion purposes to the version of her letter she has permitted me to reprint on this website.)
[6] refers to the Domino Effect argument, though Barnette does not consider it in the extreme form that Hon. Rep. Baugh uses. The version she gives does not ask us to worry about people marrying animals, but only about brother-sister and bigamous marriages.
Barnette's letter mentions several other arguments:
4) SSM will destroy the institution of marriage [6].
5) SSM contravenes the purpose of marriage, procreation of children [7]
6) A law permitting SSM would give approval for the gay lifestyle [9]
7) SSM will lead to more AIDS [11]
8) SSM is unnecessary: you can marry someone of the opposite sex [12]
An common argument against homosexuality which Barnette does not mention is that
9) homosexual activity offends against public taste (Thiroux, Ethics: Theory and Practice, sixth edition, p. 338).
Perhaps she does not mention it because the argument has not been much used in the current debate. But if the legislators' votes against SSM reflect "public taste," then we would have to say that (9) as a premise is true: Whether (9) actually provides much support for the conclusion that SSM should be banned is another matter. We'll come back to the question later whether laws should always or ever be based on public taste.
[3] contains arguments against the religion and tradition argument.
Against the tradition (1) argument, Barnette points out [3-5] that laws are not static, that marriage has a history of becoming more inclusive (once people of African descent were not permitted to marry, and not so long ago mixed-race marriages were illegal); that, in fact, other countries are moving to legally recognize SSM.
On this point, we should remember that tradition is another name for customs or culture, but customs and culture do change.
Of course, these arguments by themselves do not settle the matter. Customs can change for the better but they can also, and sometimes do, change for the worse. Which is perhaps what the Hon. Representative from Russellville would say about the fact that the Netherlands recognizes SSM's.
Against the religion argument (2), Barnette maintains [3] that civil institutions are distinct from religious institutions. What's at issue in legally permitting SSM is not religion but legal rights and responsibilities that "help couples care for each other through some of the most difficult and vulnerable points in any family's life," for instance, things like health insurance that help people deal with illness.
Against (3) the Domino Effect argument, what does Barnette say? There are plenty of things to prevent the domino effect--all the other restrictions on marriage already in place. "Removing the sex restriction on marriage merely ends discrimination on the basis of sex." [6]
Against the argument that (4) SSM will destroy the institution of marriage, Barnette in effect denies that participation of more people in an institution can destroy it. If anything one way to to strengthen an institution would be to have folks who otherwise would have been unable to use it line up to do so.
Against the argument (5) that SSM conflicts with procreation as the purpose of marriage, Barnette points out that, according to the evidence, same-sex couples can and do make excellent parents even if they did not beget the children together. [8]
There is also a fairness issue--the state issues licenses to heterosexual couples who don't plan to have children and to couples who marry past their child-bearing years. [7] This would make no sense if the only legitimate purpose of marriage is procreation.
Against the approval-for-lifestyle argument (6), Barnette points out that a legal right to marry does not imply approval for everything a person who has that right does [9].
She puts her finger on the meaning of the phrase "gay lifestyle"--this is code for what gays and lesbians do in their bedrooms. She suggests that some opponents of SSM are trying to control gays and lesbians and prevent mutually consenting activities in the privacy of their own homes. [10]
Though liberty is not explicitly mentioned, Barnette is appealing to the well-known non-interference right to liberty, i.e., the right to engage in activities that harm nobody who does not freely choose to engage in them.
Against the argument that (7) SSM will lead to more AIDS Barnette points out that
Against the argument that (8) gays and lesbians can still have the right to marry heterosexually, Barnette responds once again with a liberty/privacy argument--the government has no legitimate interest in restricting freedom of choice on this issue [12]
The argument that homosexuality offends against public taste would be relevant here only if (i) allowing SSM would increase the number of people engaging in homosexual activities and (ii) we have a right to prohibit activities which merely offend against public taste. If you hold a libertarian position on pornography--that is, as long as everyone involved with it consents to it, government should not interfere--then premise (ii) will hold no weight for you. Likewise, if you believe in free speech and think that people have a legal right, in their own homes at least, to say things that others might find find offensive, then also premise (ii) holds no weight for you. However, many opponents of SSM probably do not hold the libertarian position on pornography or free speech.
The other premise, that allowing SSM would increase the number of people engaging in homosexual activities, has not yet been proven. Probably we cannot know until the current law is changed and SSMs become recognized by the state. Even then it would be hard to tell because SSM may just put the government's stamp of recognition on relationships that would have existed anyway. Finally, as long as we do not permit government spying on what we do in our bedrooms, it would be difficult to gather reliable statistics about the number of persons engaging in homosexual activities before or after the change in the law.
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