Saturday, November 8, 2008

Same sex marriage, conscience, and coercion

When it comes to assigning readings on same sex marriage, I'm never quite sure what to assign. I've always assigned a piece of Wedgwood's, but it's not easy to find something that argues against the recognition of SSM. There was some discussion at Crooked Timber and a few folks seemed to think that Jeff Jordan's, "Is it wrong to discriminate on the basis of homosexuality?" seemed to be a crowd favorite. It's a fun article to discuss, but I feel a bit dirty after the discussion. Really, this is the best that people can come up with to argue against the recognition of same sex marriage? It almost makes me feel bad for the opponents of same sex marriage.

He writes:
For the government to sanction same-sex marriage ... would ally the government with one side of the public dilemma and against the adherents of religious-based moralities ... In that event, the religion-based morality proponents are faced with a public, state sanctioned matter which they find seriously immoral. This would be an example of a resolution via declaration.

This is supposed to be very bad. For suppose we accept this principle:
A. no just government can coerce a citizen into violating a deeply held moral belief or religious belief.

Then we have our argument against same-sex marriage:
Principle (A), conjoined with there being a public dilemma arising over the issue of same-sex marriages, leads to the observation that if the state were to sanction same-sex marriages, then persons who have profound religious or moral objections to such unions would be legally mandated to violate their beliefs since there does not appear to be any feasible "exit right" possible with regard to state sanctioned marriage.

I don't think (A) is true, but so what. Loads of things that figure in our arguments aren't true, that's not the problem. The problem is that there's no obvious candidate for the belief that religious believers are coerced to act against if SSM is recognized.

If you think I'm wrong, tell me what the belief is. Don't quote me verse that tells you not to engage in homosexual conduct, that's not the issue. The issue has to do with matters in the public sphere and I'm sceptical that there's any injunction in either the Old or New Testaments for believers to use political means for preventing people from marrying in ways that these texts say we oughtn't. So, here's the question. Is there some imperative that religious believers actually believe themselves to be under to use the law to prevent same-sex couples from marrying? Does it have a scriptural basis in The Book of Hezekiah?

6 comments:

Scott Wilson said...

I know nothing about scripture, so I'll let others provide comments on that. But the most I can see an opponent to your argument suggesting is that by being a participating member of a country that endorses SSM, they will be violating their duties--their taxes for example, will support a gov't that marries people of the same sex. So it would be a kind of guilt by association, perhaps.

But, of course, the obvious response to this is that if this this kind of argument works for religious people who oppose SSM, it works equally well if a gov't refuses to endorse SSMs. For those of us who believe that it is fundamentally wrong for a gov't to decide who gets full and equal rights by discriminating on a person's sexual orientation, we would be just as guilty by association as the religious people would be if our gov't did allow SSMs.

If this si the best that an opponent to your argument can muster, then, it would seem to provide a recuctio of the relevant principle: it implies that no gov't can ever be just, as long as people disagree with each other over fundamental issues.

Anonymous said...

Hi Clayton,

The Philosophia Christi journal devoted an issue a while back to the same sex marriage debate (vol. 7, no. 5, Summer 2005). I don't know how the articles in it will compare to the Jordan piece ... but if you're looking for new stuff, that might be a place to look.

Just fyi.

Brandon said...

Which religious believers do you have in mind? We're not all the same, you know, and 'religious believers' is not a well-defined group. For instance, in the U.S. Mormons are usually the spearhead of religious opposition to same-sex marriage; but you clearly don't have them in view at all in your last paragraph.

Also, since you are moving the topic from the morality of same-sex marriage to the legal prudence of recognizing it, I think it has to be pointed out that in cases like the LDS, they have been very clear that the problem is not the recognition as such but what that recognition commits the government to doing. For instance, if same-sex marriage is legally recognized, it has been argued by the Mormons, religious adoption agencies will not be allowed to treat canddiates capable of offering a traditional home environment, including a man as husband and father and a woman as wife and mother, as superior to other arrangements (e.g., those involving same-sex ones); similar issues arise for other kinds of religious organizations. The Mormons have pointed to the fact that people have used recognitions so far to force churches to allow religious facilities to be used for such marriages; to the fact that some advocates of same-sex marriage have already suggested that the next step after legal recognition is to take steps to strip religious institutions that don't themselves recognize same-sex marriages of their tax exempt status. The problem, in other words, is not recognition itself, but that once the government recognizes two things as effectively the same (in this case as marriage) it has no principled basis for recognizing anyone's differentiation of the two as anything other than discrimination; this requires steps to address the discrimination; this requires forcing people to treat the two as the same; and we are right back to the question of morality again. Such is the argument, in any case.

Clayton said...

Scott,

I think I'm pretty much in agreement with everything you say. There's a piece that responds to the Jordan article by saying, in effect, that this right that Jordan describes does not give anyone the right to infringe upon others. Good thing, too, because Jordan speaks of the right to heed one's moral conscience, and there are certainly things that my moral conscience tells me I ought to interfere with that Jordan thinks is protected by rights.

Anon,
Thanks for the tip, I'll take a look next week.

Brandon,
Fair enough. Jordan was speaking of religious believers as a group, so I was following suit. I'm just sceptical that there are large groups whose attitudes he's correctly described by describing them as taking themselves to be obliged to prevent SSM from being legally recognized. There are the problems of freedom of association, but then I think the response to this is to say (a) the problem seems to have to do with employment law _and_ marriage law, so why is there reason and (b) I think Scott's response handles nicely the worry you raise.

I suspect that Jordan has simply confused the question 'What should we feel free to do?' and 'What should people be free to do?', and while there are plenty of religions that will say that you oughtn't feel free to marry someone of the same sax, I don't think that there are many if any that say that people shouldn't be legally free to marry someone of the same sex. Yes, religious groups might start to stick their noses into it, but if we told them to but out, it wouldn't be a case of our forcing them to act against conscience.

Brandon said...

Clayton,

That makes things a great deal clearer; I think you're right to be skeptical of Jordan on this point.

I'm not so sure, though, that Scott's claim really deals with the worry raised in the argument I noted, though, rather than simply reiterating it in different words: the problem raised is a real one, since it *is* impossible for us to be sure that the government is engaged in a just course of action unless we have already settled on what the just course of action would be; disagreement over fundamental issues is precisely a disagreement over the criteria for deciding what justice is. But using this as a response to the argument seems a bit of a Pyrrhic victory, since it amounts to replying that everyone is in equal danger of getting a raw deal, which may be true, but doesn't move us in any direction: everyone stays where they were, in danger of getting a raw deal.

(I actually think the Mormon argument fails on the basis of its procedural assumptions, since the laws are designed to give churches a little leeway just in case, anyway; but advocates of same sex marriage in California, for instance, don't help matters by actually trying to get the LDS tax exempt status revoked, which makes it seem as if the argument really is true.)

Inside the Philosophy Factory said...

It seems as if the general principle in the Jordan article is flawed, in that it would also entail that Quakers' fundamental beliefs argue against war -- but, we still fight wars. Christian Scientists and Jehovah's Witnesses don't believe in certain medical procedures, but still pay taxes that support Medicare etc...

Any extension of this argument to the level of 'if it is legal, they will make our churches marry same-sex couples' flies in the face of basic separation of church and state. Just because abortion is legal, doesn't entail that Catholic hospitals must do them. I don't see how the argument carries weight.

Instead, the best argument against legalization of same-sex marriage should center on the manner in which it is being done. Individual states making it legal creates a situation in which a couple is married in one state, but not in another -- which is a fundamental inequality. The only way to make same-sex marriage actually and fully legal is to force recognition in all states.

The problem is that some regions are quite opposed to the practice. This was also the case at the time of Roe v. Wade -- and we are still fighting about whether or not abortion is moral and ought to be legal. If we force recognition of same-sex marriage in the same way, the issue will never actually be settled.

I don't have a citation for this argument because I don't think the article has been written...