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?