My priest, during RCIA recently, explained to us the idea (or at least, his idea) behind why homosexuality is wrong. Essentially, he made a natural law argument, that certain things are inherently obvious as part of God’s plan. I challenged this justification by stating that this seems to presuppose that we can know what God’s plan is, and in particular that we can know that God’s plan does not include homosexuality or the homosexual use of our reproductive organs. In response, he suggested that I read a book by a man named Robert P. George, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis, and in particular the fourth chapter, which is an essay titled “Same-Sex Marriage” and “Moral Neutrality”.
This essay is extremely dense and hard to read. After wading through it several times, though, I got the distinct impression that much of this was the result of the author trying to make his argument sound more impressive than it really is.
Now, to do justice to analyzing him, I want to quickly sum up his thesis and his salient arguments. The thesis, though it sometimes doesn’t seem like it, is that gay marriage should not be legal. He attempts to support this thesis with these arguments and assertions (I’m only including the relevant ones):
- Neutrality cannot be used as justification, because it is logically impossible.
- The only two justifications for making gay marriage legal are to either deny that gay marriage is immoral or to deny that its morality is important.
- Humans become one biological organism during the act of reproduction. (In response to Posner’s challenge of this notion, Brown flippantly replies: “… what is there not to understand?”)
- Reproductive-type behavior (penis into vagina) and only this behavior can make a pair into a single organism.
- The point of marriage is unity.
- Pleasure-only means-is-the-end sexual behavior (the word he uses is “instrumentalized”) is bad.
- Using sex as a means to an end (as an “instrument”), whatever that end might be, is bad.
- The intended end of sex is marital unity, achieved through, among other things, biological unity.
- Sex unites the body, sense, emotion, reason, and will, and this is a basic tenet of what it means to be human.
- Reproductive-type acts (vaginal sex) that are incapable of reproduction for non-behavioral reasons (infertility) are still reproductive-type acts (and thus good).
- Declaring the possibility of non-unitive reproductive-type acts presupposes a separation of body and soul (dualism) that is logically infeasible (i.e. there’s no such thing as “you can have my body but not my heart”).
- Difficult moral questions MUST be codified in law so as to explain the correct answers in straightforward ways to the public.
- Without the law to teach people, they will lose the desire to have heterosexual monogamous relationships.
- Without understanding of the complex philosophical details of marriage, it cannot be participated in. Thus, without the law to teach people the correct answers to these complex philosophical questions, marriage could not logically exist.
- Asserting heterosexual-only marriage legally does not discriminate against homosexuals, in the same way that asserting that only those with two eyes can legally have depth perception does not discriminate against those that have only one eye.
When stripped of all of the weighty-sounding and difficult language, many of his most important arguments seem to me to be patently absurd (I’m reasonably confident I’m not misunderstanding him, though it’s possible). The rest seem either incorrect or insufficient. Here are my responses:
1. Neutrality cannot be used as justification, because it is logically impossible.
Perhaps it is, but a doctrine of moral minimization can easily take its place without the logical implausibility. Additionally, though this is not a primary argument, it is worthwhile to point out that Mr. George’s basic point is not that neutrality is logically impossible per se but that the desire of the person making the argument that the law should be neutral somehow reflects in a non-neutral way upon the proposed neutrality of the law. Inasmuch as law itself embodies a desire to be itself, neutrality is logically possible, but the law does not wish to be itself, it simply is what it is. Thus it seems that not only is his argument rather misplaced, but it appears to be an example of an ad-hominem logical fallacy: he’s stating that the idea is logically invalid because of a characteristic of the people supporting the idea.
2. The only two justifications for making gay marriage legal are to either deny that gay marriage is immoral or to deny that its morality is important.
This may be so, but he does not actually address either point. This line of reasoning is based in a philosophy of denial: that we must prove why you have the right to do something. It may instead be more useful to use the opposite philosophy, and assert that we must prove why you must not do something. Thus, you can turn the assertion around and say that there are two required justifications for making gay marriage illegal: you must assert that gay marriage is immoral AND that the law must not be morally neutral but instead must legislate morality. He does attempt to assert both of these things, but fails to justify his assertions convincingly.
3. Humans become one biological organism during the act of reproduction. (In response to Posner’s challenge of this notion, Brown flippantly replies: “… what is there not to understand?”)
His response to Posner is entirely inadequate and reveals his lack of understanding. Compare human reproduction to that of oysters. Oysters organize in beds and, to reproduce, squirt their gametes into the water. The sperm and eggs mix in a cloud in the water above the bed of oysters, directed only by the currents and the flagella on the sperm. Fertilized eggs eventually sink to the ground, feed on plankton, and become new oysters. This does not make the entire bed of oysters a single organism. Mammals are creatures that have a similar reproductive cycle, however they live out of water and so have taken a much smaller, more protected version of the sea with them inside the female body. The penis enters the vagina to deliver sperm into this internal sea, where it moves in a cloud directed only by the flagella on the sperm. Fertilization does not occur until much later (the male could even be dead at the time of fertilization). The human female may have multiple partners, at which point the sperm of several different males compete (in a cloud in the female’s internal sea) to fertilize the egg(s) in a way very similar to oysters. Mixing, competition, and fertilization happens almost entirely without the involvement of the males. The men who contributed the sperm and the female are not, in any biological sense, a single creature.
Even if two individuals must come together for a behavior such as locomotion—for example in a three-legged race, or a pair of one-legged amputees that have practiced tying themselves together to use the legs they have left—they are not in that circumstance (or in any other circumstance) a single organism. To insist that they are a single biological creature requires a peculiarly idiosyncratic definition of the term “single biological creature” that makes very little sense.
I’m skipping point 4 here, because it depends on 3.
5. The point of marriage is unity.
This is a judgement of religion, not of either biology or law. Individuals do not become a single organism biologically (as I have explained), and legally marriage is a matter of bestowing special rights upon (and removing other rights from) a special class of corporation. For example, some people use marriage as a way to get a green card. While some may see this as a perversion of the law, it is in fact merely using the law’s purpose (to encourage marriage) in a way that seems crass. The only way to make the claim that marriage has a specific and known purpose, such as unity, is to appeal to the authority of religion (more commonly, to the pseudo-authority inherent in the “I know God’s mind” version of natural law), which is not only contrary to Mr. George’s stated goals, but is frequently bad theology. As such, Mr. George has entirely avoided justifying this claim.
6. Pleasure-only means-is-the-end sexual behavior (the word he uses is “instrumentalized”) is bad.
This is an unsubstantiated, unjustified claim. I would posit that, in as much as the pleasure of sex not only can encourage friendship and positive emotions but also triggers the hormones involved in biological pair-bonding, such “instrumentalized” sex can be quite useful in a positive way. As humans, we (without the use of technology) do not know when we are fertile, unlike many animals, but we have sex anyway. This is an important point to recognize: that it is quite possible for us to have either been created or been evolved to understand sex similarly to animals and to only be interested in it when the female is fertile. Instead, infertile sex causes pair-bonding hormones to be released, as well as causing many other beneficial effects like releasing tension. These benefits are associated with orgasm, not intercourse. To assert that this infertile sex is merely a vain attempt to procreate not only denies the evidence of the biological benefits but also appeals to an “I know the mind of God” form of natural law. As such, orgasmic sexual experiences of many kinds—not merely those that are, as George says, reproductive in type—can be useful and, particularly if we happen to know that the female is infertile, fully equivalent in effect to reproductive-type behavior.
Sexual pleasure, in this way, is useful for more than simply encouraging sufficient attempts at an ineffective reproduction system. This may seem like a Hedonistic philosophical assertion, but it is not.
7. Using sex as a means to an end (as an “instrument”), whatever that end might be, is bad.
An interesting rephrasing of this would be that “sex must be pointless.” This is an unjustified claim, particularly interesting in light of his next point.
8. The intended end of sex is marital unity, achieved through, among other things, biological unity.
Using point #7, this would indicate that using sex as an instrument to achieve marital unity is bad. But what is perhaps more unfortunate is that he is conflating marriage with a desire for unity. This conflation is not justified—something he does not even attempt to do—without an appeal to the authority of religion. This point is only subtly different from point #5. Instead of justifying the assertion, Mr. George merely asserts these things as though it were immediately obvious to everyone that the true purpose of marriage is unity, that this unity is both inherently good and most fully expressed in reproductive-type (penis in vagina) sex, and that anything less than reproductive-type behavior is immoral. The obvious conflict of this assertion with point #7 is almost entirely ignored.
9. Sex unites the body, sense, emotion, reason, and will, and this is a basic tenet of what it means to be human.
This is an unrealistic view of sex. It is trivial to find evidence that men and women experience the sense of sex in different (non-united) ways; that their emotions prior to, during, and as a result of sex are different; that their reasons for having sex and their reasoning during sex are different; and that their intent or will during sex is different. Similarly, the effects of sex upon the two participants, both biologically and mentally, are also very different, both before, during, and afterward.
Additionally, even assuming that he is correct (which he most obviously is not), one must ask what the mechanism of this unity is. As there is nothing inherent in the physical arrangement of body parts that unites senses, emotions, reasons, or wills—consider the fact that during rape the physical arrangements are the same but the unity most certainly is not—the source of this unity must be something non-physical. There is no obvious reason to suggest that this “something else” cannot also be available to sexual behaviors that are not of the reproductive-type, such as homosexual sexual behavior.
10. Reproductive-type acts (vaginal sex) that are incapable of reproduction for non-behavioral reasons (infertility) are still reproductive-type acts (and thus good).
This is used to justify allowing infertile couples to marry. However, some infertile couples are incapable of reproductive-type acts (such as men whose penis has been removed). Mr. George does not address this, which means we can only draw the conclusion that he is arguing that such people cannot be unified in marriage and thus their marriages are immoral. This is an absurd proposition.
11. Declaring the possibility of non-unitive reproductive-type acts presupposes a separation of body and soul (dualism) that is logically infeasible (i.e. there’s no such thing as “you can have my body but not my heart”).
Rape is not unitive, though it uses the same physical mechanism and can achieve the same biological and reproductive results. In cases of such sexual abuse, it is common to discover cases where the victim and the rapist are not unified in any way but physically. If nothing else, these cases of rape (where Stockholm Syndrome does not develop) are proof positive of at least a certain amount of dualism.
12. Difficult moral questions MUST be codified in law so as to explain the correct answers in straightforward ways to the public.
This does not sound right, and instead sounds paternalistic, condescending, and authoritarian. Mr. George misconstrues the reasoning of John Rawls to suggest that if Rawls is right, the government must necessarily allow marriage of any kind, including polygamous marriage. This is not Rawls’s point, nor is it a logical conclusion to draw from it. Rawls’s point is majoritarian, that is, that the law should codify what “most people view as acceptable” while allowing others to explore their freedom without the use of authoritarian intervention where it is not necessary. Thus the conclusion to draw from Rawls’s argument is that the state may codify what most people view as acceptable, for example that marriage involves only two people, without authoritarian intervention such as preventing three-person sex.
Mr. George also does not address the concept of freedom. Moral choice has no meaning if there is no opportunity to choose to do immoral things. I am reminded of the Henry Ford quote, “You can choose any color, as long as it’s black.” This appears to be Mr. George’s approach to government and freedom: that freedom is the ability to choose anything you want as long as it’s the right thing, enforced by the government. This concept of freedom is both inherently contradictory and authoritarian. The government’s purview in a free society is not to legislate morality, but merely to keep people from harming each other. As Thomas Jefferson succinctly put it, “No man has a natural right to commit aggression on the equal rights of another, and this is ALL from which the laws ought to restrain him.” (emphasis mine)
13. Without the law to teach people, they will lose the desire to have heterosexual monogamous relationships.
This is a truly astounding claim. The law exists as a reflection of our desire to pair-bond. The desire to reproduce heterosexually existed before law existed, as did monogamous relationships. Penguins, for example, have monogamous heterosexual relationships without the need for a law to teach them to want it. There is no reason to believe that humans cannot, would not, or do not desire monogamous heterosexual relationships without being taught to desire them. On the contrary, if one examines the biological consequences of sex and combines that with knowledge of human possessiveness, it is obvious that these things alone are sufficient to establish such desire. But what is even more to the point, the law is not used as a tool for teaching morality in any other circumstance—and if it were, it would be a bad one. Do people believe only because it is illegal that murder is wrong? Of course not.
14. Without understanding of the complex philosophical details of marriage, it cannot be participated in. Thus, without the law to teach people the correct answers to these complex philosophical questions, marriage could not logically exist.
This is a preposterous claim. Even the most ignorant of humans, living in the jungle far from civilization or law or philosophical teachings of any kind are capable of valid marriage. At least, I can’t imagine why they wouldn’t be, and I’m not going to take Mr. George’s word for it that their marriages are invalid because of their lack of understanding of the philosophical contexts for their marriage.
15. Asserting heterosexual-only marriage legally does not discriminate against homosexuals, in the same way that asserting that only those with two eyes can legally have depth perception does not discriminate against those that have only one eye.
On the contrary, of course it does. Even if we assume that the unitive nature of vaginal intercourse is critical to the understanding of marriage, it is theoretically possible to overcome this restriction through the use of technology and/or surgery. If a way can be found to make homosexual sexual behavior reproductive in type, it would be virtually identical to heterosexual sex in all the important characteristics that Mr. George has thus far enumerated. Morality cannot change because of simple technological advance.
In the end, I find Robert P. George’s reasoning wholly unconvincing. It is contradictory, fails his stated goal of avoiding an appeal to the authority of religion, and does not address the points that he sets out to address. Not only that, but many of his assertions simply boggle the mind because they appear obviously false. The only claim he appears to make successfully is that neutrality is logically inconsistent as a justification for legal manipulation. This claim, however, is based upon an ad-hominem logical fallacy, and even so does not prevent a nearly-identical ideology of moral minimalism (which has even less of an appearance of logical inconsistency) from immediately taking its place as a justification for legalizing gay marriage.