Moral Rightness and the Same Sex Marriage Debate

March 26, 2013    By: Administrator @ 10:41 pm   Category: Ethics

This guest post was submitted by NCT regular commenter, DavidF

Hot off the presses, you can listen to the oral arguments over the Same Sex marriage debate before the Supreme Court. I highly recommend it.

I want to bring up some of the highlights by comparing the competing value structures that the two sides rely on to make their case. So you’re getting a philosophical post and a political post for the price of one. But why the philosophy? Because the moral values both sides bring to the debate rest at the very heart of how they justify their positions. This is a useful tool to get at the bias inherent to each side’s argument.

Consequentialism and Deontology Crash Course

There are two moral systems colliding in this debate: consequentialism and deontology. The conservatives rely mainly on deontological arguments and the liberals rely mainly on consequentialist arguments. What’s the difference?

Consequentialism is the idea that you can judge the rightness of an act based on its consequences. There are a lot of good reasons to be consequentialists. Take for example, a war situation. A bunch of soldiers are in a bunker when a live grenade lands in the middle of them. Suddenly one heroic soldier jumps on the grenade and saves everyone else. Do we think that person did the morally right thing? Of course. He saved the lives of all the other soldiers. What about the fact that our hero committed suicide? Doesn’t matter. Everyone else is safe. The calculus that goes into making a sacrifice generally demands that we think about the consequences. In short, consequences matter.

Deontology is the idea that an act is either morally right or wrong regardless of the consequences. Most people have a lot of deontological views. For example, rape. Why is rape wrong? Because it is. What happens if you apply a consequentialist framework to judging the moral rightness of rape? My ROTC friend told me that an army field manual says rape is wrong because “it lowers company morale.” That may be true, but I think we can all agree that that answer is seriously disturbing. Sometimes we don’t need to weigh in the consequences, we just know that something is wrong.

It turns out that most people use both moral systems all the time. We use whatever helps express our values on a subject. So how does this apply to the Same Sex marriage debate?

Pro-Prop 8 Deontology

Charles Cooper (pro-Prop 8 lawyer) points out that marriage is a traditional institution protected by the state. Fair enough. But why should it stay an only opposite-sex union? Cooper tries to gives some consequentialist justifications, but they don’t stick.

Cooper argues that marriage is about the procreative power, and protecting marriage the way it is furthers the state’s purposes (ie making future citizens). Justice Kagan grills Cooper on this point. What about an opposite-sex couple that marries after they are 55? Should the state keep them from getting married since they clearly can’t procreate? Cooper of course has to say no, but he can’t explain why the answer is no except by appealing to his initial claim: traditional marriage exists between opposite sex couples only. That’s the marital norm. Cooper’s argument isn’t so much a deflection so much as it is a retreat to deontological grounds, where the Prop 8 argument works best.

The deontological position for Prop 8 is fairly simple. God ordained opposite-sex marriage but not same-sex marriage. Cooper stays away from citing religion. He replaces God with tradition, but the argument works the same way: Marriage’s traditional meaning includes only opposite-sex couples. Why? Because that’s how its been understood for thousands of years.

Cooper then suffers a consequentialist sting from Justice Kennedy. There are 40,000 children of same sex couples in California that would want their parents to have “full recognition and full status” for their marriage. Doesn’t the Prop 8 ban hurt them (implying that if it hurts them, then the law should be changed)?

Cooper points to a data problem. And it turns out that this is one of the major sticking points of the case. The sociological studies on the effects of same sex marriage are far too new and far too inconclusive to give concrete help in settling the matter. That may be good for Cooper’s answer to Kennedy, but it doesn’t help Cooper make the consequentialist argument he wants to. That same sex couples suffer in at least some way from Prop 8 is evident, that society would suffer even more from same sex marriage is not evident. And without some good consequence-based data, Cooper’s doesn’t work well outside the deontological framework.

Anti-Prop 8 Consequentialism

So does that make same sex marriage proponents immoral? Hardly. Listen to Ted Olson’s arguments (pro-same sex marriage lawyer), and you find consequentialist arguments.

Olson argues that marriage is a fundamental right. Why? That’s a tricky question to answer, especially in the context of California law. California state law gives same-sex unions all of the privileges that opposite-sex marriages enjoy minus the label. Justice Roberts questions Olson over this. If the privileges are (almost) identical, then why change the definition of marriage to mean something it has never meant before? Olson appeals to consequentialist grounds: “marriage has a status, recognition, support….” In other words, there are social advantages to marriage, and that implies consequences.

Just as Cooper crossed shakily to the consequentialist camp, Olson has a tough time in deontological territory. The deontological argument for same-sex marriage would be something like: states can’t limit marriages to sexual orientation because it is wrong to discriminate against sexual orientation. Why? Discrimination is wrong. Fine.

But consider a paradox that several of the Justices raised in one way or another to Solicitor General Donald Verrilli arguing in Olson’s favor (Olson struggled with this point too, but it comes out best with Verrilli). Remember how California gives same-sex unions identical privileges to opposite-sex marriages? According to Verilli, that violates equal protection and the state should have to give marriage to everyone. But many states don’t have laws that separate same-sex unions from opposite-sex marriages. If they don’t have anything on the books to separate the unions from the marriages, then they can’t be guilty of discrimination, even though they clearly are. Here’s the paradox: Those states would only be forced to accept same-sex marriage under the equal protection clause if they first legally acknowledge same-sex unions. How would they do that? By giving same-sex unions legal privileges that opposite-sex marriages enjoy. How could that be right?

Verrilli, like Olson, tried to navigate through the paradox by limiting their claim. They argued that the Supreme Court decision should apply only to California. But if that’s true, the decision would incentivize states that don’t want same-sex marriage to forbid same-sex unions entirely. If same-sex marriage is right because discriminating is wrong (the deontological argument), then Verrilli contradicts the deontological justification he gives to advance his claim. He’s incentivizing discrimination beyond the mere marriage label. The point is, the anti-Prop 8 argument works well in a consequentialist paradigm, but struggles in a deontological one.

So which moral system should we uphold in this debate, and why is it any better than the other?

37 Comments »

  1. Excellent article! Thanks for posting it. Fascinating to have the philosophical debate clearly laid out and the play by play.

    Comment by Howard — March 27, 2013 @ 6:17 am

  2. Thanks. I have followed these cases for years, and had never thought of them in these terms.

    Comment by JrL — March 27, 2013 @ 7:17 am

  3. Interestingly, rank and file opponents of gay marriage often cite dire consequences of moving down a slippery slope, but in front of the Supreme Court those fears wouldn’t hold water because there is no solid evidence of any dire consequences pending at all. So as you said, opponents in this court mostly have to lean on deontological arguments, and not particularly strong ones at that.

    Comment by Geoff J — March 27, 2013 @ 10:01 am

  4. How does this work for a consequential argument against same-sex marriage?

    If it’s discrimination to prevent me from marrying Woman A, then it’s also discrimination to prevent me from marrying Woman B, Woman C and Man D.

    So you then have to define marriage as so broad as to dilute its function entirely.

    Also, about those 40,000 kids who’d supposedly like to see their family situations recognized (and I only say supposedly because I doubt every single one of those children is sapient enough to comprehend just now – I mean, I doubt a 4-month old has an opinion on this) what about the harm done to them by denying them half of their parentage? There is real data that shows how much children (especially boys) struggle without a father.

    Further, if we want to support the equality and value of women and push for more female participation in the working world, why are we creating legislation that creates households devoid of women?

    Comment by Proud Daughter of Eve — March 27, 2013 @ 11:23 am

  5. Proud Daughter, I’m no philosopher but it seems to me that by appealing to arguments like the “dilution” of the function of marriage you’re falling back on deontological reasoning (ie gay marriage will lead to polygamy and/or polyandry, which is wrong because it is), not consequentialism. And again, the evidence that supports your claims about fatherless children (your real grudge, apparently, is against lesbian marriage) is drawn almost exclusively from single-parent households, not gay ones, so like the OP stated you’re on extremely shaky consequentialist grounds. And well, your claim about equality for women and all that is just…umm…I’m not sure what it has to do with anything.

    Comment by Casey — March 27, 2013 @ 12:01 pm

  6. Casey, you reversed the terms. :)

    Proud Daughter – there is an important difference between same sex marriage and polygamy. This came out in the oral arguments as well. If LGBTs are a class of people, then discriminating against their marriage preference is discrimination. That would be like telling a black couple they can be in a union but not a marriage (again, if LGBTs are a class like black people are). But banning polygamy would be totally fine. Why? Polygamy isn’t a class-based distinction, its an act. There is no class of polygamists, it’s 100% a choice.

    The 40,000 children argument is a tough one. You’re right. Not all of them could know or care. But some of them certainly would. That’s just common sense.

    The court seems very inclined to avoid all studies in this debate. They actually caught Verrilli on this one. Verilli cited studies that show that children who grow up in same-sex families function as well as any other children. But he also cited studies to show that Prop 8 harms children in same-sex families. So which is it, Roberts asked. Verrilli had to make a common sense appeal, but that gets back to the difficult consequentialist problems in this debate.

    To me it’s clear that each side has a better moral framework for their argument, but I don’t think either group has a very strong moral justification from the framework they use. That’s part of the problem. The deontological argument rests on tradition, which is kind of weak, and the consequentialist side rests on data that isn’t conclusive.

    Comment by DavidF — March 27, 2013 @ 12:56 pm

  7. DavidF: If the distinction with polygamy is as you described it is inane. What about all of those persons who cannot be sexually satisfied with a relation with just one partner? Now it is a class based distinction –and I suspect you could a very large class of such people.

    Comment by Blake — March 27, 2013 @ 2:05 pm

  8. Blake,

    You’re probably right. But if I recall correctly, the Supreme Court has some pretty strict rules on what kinds of people get to be a class or at least a class worthy of legal protection. I’m not fully convinced that the LGBTQ community constitutes a legitimate class for legal protection. But I think they have a better case than hypersexual people.

    Comment by DavidF — March 27, 2013 @ 2:15 pm

  9. The meaning of “marriage” is changing — and that will influence future decision-making as much as anything else.

    Comment by Jack — March 27, 2013 @ 4:05 pm

  10. DavidF: I just want to tell you that this post was so well written that in my mind I read it in Nina Totenberg’s voice.

    Comment by BrianJ — March 27, 2013 @ 8:56 pm

  11. DavidF: The deontological argument rests on tradition, which is kind of weak, and the consequentialist side rests on data that isn’t conclusive.

    Well said.

    Comment by Geoff J — March 27, 2013 @ 11:50 pm

  12. Casey (#5): I don’t have a grudge against Gay Marriage beyond just not supporting it.

    The claim for equality of women is this: If we hold that women are a valuable part of humanity and their voices are important in the workplace and the wider world, then allowing households to be set up that purposefully exclude women is contrary to that view point. You’re allowing children to be raised in situations where they are denied a mother because the father(s) don’t find women sexually attractive. This would suggest you believe the only real purpose of women is sexual – if the man doesn’t want to have sex with her, then she has nothing valuable to offer anyone else (like her children).

    On another track, there is no child born in this world that does not have a father and a mother. It’s biological fact. Parents can die or abandon children but it takes a sperm and an egg to make a baby and there is nothing that can change that. (I think if they could make a baby by stripping the DNA from an egg and inputting the DNA from two sperms, or by adding the DNA from another egg, it’d’ve been done it by now.) Every child has a right to a mother and a father. Just because circumstances have denied some their birth parents doesn’t mean anyone can, should, or has taken their right to full parentage away from them. Girls need mothers to learn about being a woman and fathers to learn good relations with men; boys need fathers to learn about being a man and mothers to learn good relations with women.

    There’s also the argument about breastmilk and how much better it is for developing babies and no father, though loving and nuturing as he can be, can produce that.

    Comment by Proud Daughter of Eve — March 28, 2013 @ 6:10 am

  13. PDofE, scientists are progressing in same sex reproduction research, and it will be viable some day. Also, some men can breast feed.

    http://en.m.wikipedia.org/wiki/Male_lactation#section_3

    Maybe it’s time for men to share the breast feeding burden.

    Comment by Greg Neil — March 28, 2013 @ 9:07 am

  14. PDoE,

    You are giving more deontological arguments, as is the norm with opponents of gay marriage. For instance “Every child has a right to a mother and a father” is a clearly deontological argument. The problem is that sort of just-so claim only will carry so much weight with the Supreme Court Justices. Just as the consequentialists arguments from the pro gay marriage side have weaknesses because gay marriage is a new thing. I think that is the main point of this meta-discussion.

    Comment by Geoff J — March 28, 2013 @ 10:47 am

  15. I don’t buy the slippery slope argument as to plural marriage. If the notion behind same sex marriage is discrimination against people because of “feelings,” then there’s no way you should discriminate against people, no matter if those “feelings” carry you to plural marriage, incestuous marriages, and so forth. Hetero and gay and plural relationships are all “choices.” No one is putting a gun to someone’s head to engage in those relationships. By definition, a bi-sexual is attracted to members of his/her gender and opposite gender. Why handcuff the bi-sexual to one spouse when he/she might want at least two, one from each gender? Until I see that kind of rationale and support for SSM, I will not give the cause any crediblity. Supporters, like any other faction, just want what they can get for their own special interest, not for the interest of others who find themselves outside traditional notions of societal norms. If you want to get my attention: either lobby to do away with state sanctioned marriage altogether, or lobby for a definition that allows two or more individuals, of legal age, to enter into whatever unions they want.

    Comment by lod — March 28, 2013 @ 11:02 am

  16. Geoff J #14 – Good insight!

    I actually appreciate the many compliments I have had for this post. My experience is that people generally shut off or bow out when philosophy enters the room. So I must admit, I’m pleasantly surprised with the comments here.

    Comment by DavidF — March 28, 2013 @ 11:23 am

  17. FWIW, in my state “marriage” is a special form of civil contract. “Love” is not mentioned anywhere in the requirements to get married. It’s all about obligations, and, for the most part, rules that govern property and relations with children. In other words, notions that a gay couple could achieve with a well written agreement between the parties. If this was only about the incidents of marriage, civil unions would suffice. But this has never been about spousal benefits and visitations in the hospital. It’s about societal acceptance. Supporters of SSM say one thing superficially, but upon further cross examination and argument, almost always boil the matter down to acceptance.

    Comment by lod — March 28, 2013 @ 11:33 am

  18. This, to me, is a clear example of how reasoning – moral reasoning especially – is a slave of the passions. We use the examples, thought experiments and test cases which we find most relevant in order to “prove” that one moral system is better or more correct than the another, and then turn right around and use that same moral system to justify our position in the examples, thought experiments and test cases which we find relevant. Might I suggest a more Machiavellian interpretation of the situation: each side is merely dressing up their own preferences in the most morally compelling language possible in an ongoing struggle for power. If the pro-gay rights people can find a deontological way of dressing up their preferences, they’ll use it, and the same can be said for the other side.

    Comment by Jeff G — March 28, 2013 @ 1:15 pm

  19. lod: It’s about societal acceptance. Supporters of SSM say one thing superficially, but upon further cross examination and argument, almost always boil the matter down to acceptance.

    Yup.

    Comment by Geoff J — March 28, 2013 @ 1:22 pm

  20. BTW, thanks for the link to the oral arguments. Have only made it through 20 minutes because of interruptions at work. Have argued stuff on the state appellate level, and it’s nerve wracking when you have a somewhat simple case, much less one that takes on the many twists and turns of Prop 8 litigation. But the Justices put their pants (or pant suits) on just like we do. They have their own pet issues and biases. It’ll make for an interesting decision. One thing is sure– neither side has a clear position. Reasonable minds will differ, no matter what the final outcome.

    Comment by lod — March 28, 2013 @ 1:40 pm

  21. Re The shift in opposition to gay marriage:
    The single biggest fundraising change between 2008 and 2012 was the disappearance from the political arena of the mightiest foe of gay marriage – the Mormon Church. The $20 million difference between the two campaigns last year is close to several estimates of what the Mormon Church and its supporters gave to California’s Prop 8 in 2008.

    Comment by Howard — March 28, 2013 @ 2:38 pm

  22. Jeff G:

    each side is merely dressing up their own preferences in the most morally compelling language possible in an ongoing struggle for power.

    I agree. I guess it doesn’t really bother me that one side’s arguments can work only within a certain moral system but not another. What bothers me is when the moral system is chosen only after a position has been reached. Then the moral system is often nothing more than a farce—like choosing (and re-choosing) statistical tests after the data has been analyzed until you find one that tells you that the experiment “worked” as hoped.

    This kind of convenient logical re-reasoning can lead to some pretty silly arguments. Take for example, the defense of traditional marriage argued by Robert P. George: he clearly reached his anti-SSM position based on tradition/religion, but he doesn’t want to limit his argument to that (because it’s a weak legal argument). So how does he restrict marriage to only heterosexual couples without breaking up all the heterosexual couples who are sterile? He essentially turns coitus (aka “unity by coordination” or “dynamism toward reproduction”) into the ultimate definition of marriage.

    Sometimes a tautological argument comes across as more intelligent and thought-out than a carefully crafted one.

    Comment by BrianJ — March 28, 2013 @ 3:42 pm

  23. BrianJ

    That’s close to the argument I’d make, had I been in Cooper’s shoes in front of the Supreme Court (and had my wits about me in front of it). Maybe sterile couples aren’t being procreative, but they symbolically help reinforce the notion that the culmination of marriage is a family made by a heterosexual couple.

    I took a look at the briefs earlier today, and they don’t make that argument (one of the amicus briefs could have, but I doubt it). I suspect it won’t matter though. Everyone recognizes this comes down to Justice Kennedy’s vote, and since he expressed in the DOMA arguments, quite strongly I might add, that marriage is a state, not a federal matter, I think he may lean towards the prop 8 crowd. I could (easily) be wrong, but if I had to put my money somewhere…

    Comment by DavidF — March 28, 2013 @ 9:10 pm

  24. I am still struggling with my own feelings on this subject, but one thing I don’t accept is the idea that marriage is great and same-sex marriage will somehow destroy it. Frankly, we heterosexuals are doing a pretty good job of wrecking marriage as it is. We don’t need any help from same-sex couples in this regard.

    Comment by ray — March 29, 2013 @ 6:53 am

  25. I wonder if the Supreme Court will rely on the same reasoning as Canada’s Supreme Court in refusing to recognize plural marriage.In the Matter of:The Constitutional Question Act, R.S.B.C. 1986, c 68, And In the Matter of: The Canadian Charter of Rights and Freedoms And in the Matter of: A Reference by The Lieutenant Governor In Council Set Out in Order In Council No. 533 dated October 22, 2009 concerning the Constitutionality of s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 Decided 11/23/2011. From page [1343] “When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”.” I wonder, then, is there any such thing as so-called “good same sex marriage?” In the Canadian case, all the negative impacts of plural marriage were trotted out, despite the fact that there are many people living in plural relationships who are happy and healthy consenting adults. The court mainly looked at the Warren Jeff type “bad” examples, not instances where all participating individuals were consenting adults. I’m not an advocate of plural marriage. But if you’re going to open marriage up to two same gender consenting adults, I know of no logical reason to prevent two or more consenting adults of whatever gender to combine for “marriage.” People can already co-habitate in both same sex as well as plural relations and there is no criminal or civil prohibition on their behavior. Why would we give SS government recognition and not those in plural relationships?

    Comment by lod — March 29, 2013 @ 8:16 am

  26. Deontology, in western culture, had it zenith with a strong Catholic Church. And is in stready decline since. Consequentialism, a product of the ascendency of scientific rationalism, will ultimately win out here. In this debate as well as moving forward.

    As far as the slippery slope arguments; mankind is rational and emmotional enough to draw clean, and yes logical, distinctions between kinds: one-to-one, one-to-many, adult-to-adult. The emotions kick in when an opinion is expressed. We know this is true because polygamous cultures are identifiably different in almost every way than cultures that embrace same sex marriage.

    Comment by Gonzo — March 30, 2013 @ 8:48 am

  27. DavidF:

    Maybe sterile couples aren’t being procreative, but they symbolically help reinforce the notion that the culmination of marriage is a family made by a heterosexual couple.

    Wouldn’t you worry that “symbolically” is too imprecise? I mean, which is more symbolic of a “family made by a heterosexual couple”: a) a sterile, childless heterosexual couple or b) a lesbian couple raising two kids that were born from one or both of the wives?

    It seems that this “symbolism argument” supports redefining marriage to mean only those unions that produce (or adopt) and raise at least one child: you’re not recognized as married until there’s a kid. We’ve replaced coitus with child-rearing as the consummating act of marriage.

    Comment by BrianJ — April 1, 2013 @ 8:29 am

  28. BrianJ

    Suppose you thought that there should only be opposite-sex couples for procreative purposes (I don’t know if you feel this way, so I’m keeping this hypothetical). You would want your children to see only opposite-sex couples. Ideally you would prefer that these couples could procreate, perhaps, but as long as they are reinforcing at least the opposite-sex ideal, then they are contributing to your goal. In other words, they fit the pattern, and do so without us having to get absurdly austere on marriage requirements, which would be bad for many reasons. A same-sex marriage, however, contradicts the ideal pattern.

    I suppose someone could argue that a same sex couple with kids is more like the ideal pattern than a sterile opposite-sex couple without kids, but since the law would also have to allow same-sex marriages without kids if the allowed them to have kids, then the whole grouping of same-sex couples is less ideal than the exceptional cases of sterile opposite-sex couples without kids.

    I hope that’s not confusing. I’m not operating at 100% today.

    Comment by DavidF — April 1, 2013 @ 2:51 pm

  29. Thanks for the answer. It was not at all confusing—but I don’t think it directly addresses the (potential) counterargument from…well, Justice Kagan might be the most likely. My bad for not being more clear. (I’ll note that I’m not sure if you’re arguing your personal opinion here or just presenting a possible argument; I’m not trying to argue against your personal view.)

    To illustrate my point more clearly, let’s compare two statements:

    a) there should only be opposite-sex couples for procreative purposes.
    b) only for procreative purposes should there be any couples.

    That’s not precisely how I would have worded them de novo, but I wanted to play off the exact wording you used in #28. The point of difference (if they are read as I hoped) is that ‘a’ is about restricting what type of couples are ideal/allowed for procreative purposes—it says nothing about any other purposes of coupling (e.g., inheritance) and therefore might allow for distinctions such as domestic partnership (a same-sex couple that shares the bills) versus a marriage (an opposite-sex couple that has kids). In contrast, ‘b’ is about defining why exactly the state is even involved in recognizing couples: viz., ’cause they make babies. (Note that ‘a’ and ‘b’ are not mutually exclusive.)

    I believe most traditional marriage defenders start out believing a limited version of ‘a': “there should only be opposite-sex couples. period.” But, when forced to answer why our laws should mirror their belief, have to elaborate. Which I think they start out elaborating into ‘a': “There should only be opposite-sex couples…because obviously they’re the only ones that can reproduce.”

    The problem I see is that by emphasizing procreation as the distinction of marriage, people like Robert George drift into arguing for ‘b’. Kids are, after all, the only reason we even care about recognizing marriage in the first place, right? Same-sex couples aren’t going to produce kids so we won’t call that a marriage. Oh, but what to do about all those non-reproducing opposite-sex couples? George is left with the symbolism argument to allow him to retreat from ‘b’ back toward ‘a': “only for procreative purposes—or the symbolism thereof—should there be opposite-sex couples.”

    Now, in your hypothetical you suppose that I “would want my children to see only opposite-sex couples.” But how will I feel about my kids seeing opposite-sex couples who openly proclaim that they have no intention of ever having children? They defy ‘b’ as well as the compromise reached to get back to ‘a’. There are plenty of such couples: healthy adults who choose sterilization to prevent ever having to deal with pregnancy and kids and blech! Are those couples a great model for my kids of the ideal of procreation? (And that’s not even getting into the problem of essentially telling couples who are sterile—but desperately wish they were fertile—that their marriage is of “symbolic value.”) Why not step back and really reinforce my ideal by having government only award the term “marriage” to those couples who fulfill the ideal? That may seem like an “absurdly austere marriage requirement,” but, depending on your view, it is no more austere than the traditional requirement that couples be capable of coitus.

    Comment by BrianJ — April 1, 2013 @ 5:59 pm

  30. BrianJ

    You raise some really good points. I don’t know if I have a good counter argument (partly because I don’t know if I fully buy it either).

    If I were really sticking to my guns though, I’d say that we need to look at big groups. The large group of opposite-sex couples contains members who don’t contribute to the ideal. BUT, the large group of mixed marriage couples (both opposite and same-sex marriage couples) has many members who don’t contribute to the ideal. If we have to make a choice between these two broad groups, then we’re doing more for our society to exclude same-sex marriages than including them (even if the bad apples of the first group aren’t that good for society either).

    Admittedly, I don’t think that answer would satisfy Justice Kagan. I doubt I could come up with one that would.

    Comment by DavidF — April 1, 2013 @ 8:23 pm

  31. Good article by Washington Post writer Michael Gerson that addresses the secularization of America, how more and more people consider themselves “nonreligious,” and how we’re headed towards a European model. I liked a particular quote: “There is no contempt like the contempt of the true believer or the militant skeptic.”

    Comment by lod — April 2, 2013 @ 8:35 am

  32. “There is no contempt like the contempt of the true believer or the militant skeptic.”

    The trick is to discover whether that contempt is aimed at individuals or a culture.

    Comment by Jack — April 4, 2013 @ 6:26 pm

  33. DavidF: wouldn’t the consequentialist argument against Rape be that it destroys a persons freedom and sense of self? I can not think of a good deontological example.

    Comment by Matt W. — April 6, 2013 @ 8:48 am

  34. Matt W.

    Those are the results of rape, but are those the reasons why we say it is wrong? If so, we run down an ugly avenue.

    In deontology you rank the relative wrongness of an action against other actions (sometimes, it depends on the deontological framework you are using). In consequentialism, you rank the relative wrongness of consequences from different actions. So rape may limit a person’s freedom, but putting them in a cave for a week limits their freedom over a greater duration of time. Which is worse? Once you start negotiating actions like these according to the consequences, you have to make some ugly concessions.

    We could say that as a general rule, any action that limits a person’s freedom is wrong, but then we must answer why that is so. That’s hard to do on consequentialist grounds.

    Would we honestly feel right telling our children that rape is wrong because it destroys a person’s freedom and sense of self? As I implied, there are all kinds of actions that have these results (e.g. bullying), so why is rape any wronger than any of those other ones? I suspect that that argument wouldn’t be as compelling as we would hope it would be.

    There are a few different deontological arguments we can use against rape. One is that God says it’s wrong, therefore it’s wrong. Another is that anything that treats people as a means to an end is against reason (Kant’s argument). Maybe the simplist one is that rape is wrong because it is wrong to harm someone. Moreso, it harms someone incredibly, and incredible harm is very wrong.

    That last one is deontological because you aren’t looking at the results of the harm to determine whether the harm is sufficient to say the action is wrong, you are just saying that the harm itself is wrong, and moreso because rape creates abundant harm.

    Comment by DavidF — April 6, 2013 @ 11:26 am

  35. DavidF:

    We could say that as a general rule, any action that limits a person’s freedom is wrong, but then we must answer why that is so. That’s hard to do on consequentialist grounds.

    Is every consequentialist argument eventually deontological? I mean, at some point you have to say why the consequence is “bad.” How do you do that without employing deontology?

    Comment by BrianJ — April 7, 2013 @ 9:20 am

  36. BrianJ

    No. But all moral arguments one way or the other have to be based on some basic good. So Jeremy Bentham, who you probably remember as a major figure in utilitarianism (a form of consequentialism), claimed that the ultimate good is happiness, by which he meant pleasure. So utilitarianism is a moral system used to maximize pleasure.

    Hobbes, by contrast (but another consequentialist), thought that the purpose of morality is to provide security for a society. So the upshot of his natural law theory is that anything that keeps society safe is moral.

    Pleasure, safety–how do we justify these as the kinds of things that morality should seek? I think Bentham and Hobbes would have said that the answer is self-evident. We pursue them because that is the point of morality. We therefore determine the actions we will take based on how they will achieve those ends.

    Perhaps I should take a moment to back up. One could substitute maximizing others’ will for pleasure or safety, and then make some consequentialist arguments based on the assumption that maximizing autonomy is the goal of morality.

    Liberalism is based on this idea. The idea is that you can do whatever you want so long as it doesn’t limit me. So a liberal activist will judge propositions based on these consequences. But what happens when your autonomy conflicts with mine? Who should capitulate to who? It seems like we can only resolve that question by appealing to something else, such as happiness or pleasure, and then we end up with a consequentialist system where the goal is something other than maximizing autonomy, and that is maximizing pleasure.

    In saying that, Kant believed that the purpose of morality was to maximize autonomy, but he argued this on deontological grounds. He thougth that happiness or pleasure is far too vague a concept to base morality on. Instead morality should seek to maximize others’ autonomy so that each of us can pursue happiness on our own terms. So far this is redundant to what I said above, but the way he said we should figure out what actions accomplish this task is by appealing to reason, not consequences. This is where his categorical imperative comes from.

    The formulation of the categortical imperative is a little fuzzy in my head right now, and I don’t have the time to untangle that beast for at least a week, but here is one example that I think may give a taste of how that works. So we could ask, is abortion wrong? To answer this, I universalize abortion and ask what would happen if everyone had an abortion. If so, the human race would cease to exist, and would have done so eons ago. This presents a logical contradiction negating general autonomy, so I must conclude that abortion is wrong.

    A consequentialist argument would say something like abortion is wrong because it limits procreation and our economy needs procreation, or something like that. But that isn’t Kant’s argument. Sure, he is noting consequences, but only as an extension of a kind of logical proof to show that an action is wrong in and of itself (and is therefore wrong under all circumstances).

    Comment by DavidF — April 7, 2013 @ 11:20 am

  37. I recommend the work of Robert P George, and Jennifer Roback Morse on this topic…

    Comment by Steve — June 14, 2013 @ 10:40 am

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