Same-Sex Marriage and the Argument from Public Disagreement

Same-Sex Marriage and the Argument from Public Disagreement David Boonin Most arguments against same-sex marriage rest at least in part on claims about the moral status of homosexuality: claims to the effect that homosexual behavior is morally objectionable in itself, or that homosexuals as a class are predisposed to commit acts (such as infidelity or child molestation) that are morally objectionable on independent grounds. In Is It Wrong to Discriminate on the Basis of Homosexuality? Jeff Jordan claims to produce an argument against same-sex marriage that makes no such assumptions. 1 Rather than relying on claims about the morality of homosexuality per se, Jordan attempts to show that it is morally permissible for the state to refuse to sanction same-sex marriages by appealing to the fact that marriage is a public rather than private institution, and that there is widespread public disagreement about the moral status of homosexuality. I will begin by presenting a brief summary of Jordan s principal argument for this claim and will then argue that it should be rejected for three distinct reasons: the argument itself is unsound, it is subject to a reductio ad absurdum that Jordan fails to overcome, and, contrary to Jordan s claim, it does in fact depend on claims about the morality of homosexuality, claims that stand in need of support and that Jordan has not defended. I Jordan begins by defining an impasse over the moral status of x as a situation in which people hold genuinely conflicting beliefs regarding the moral status of x, and a public dilemma as an impasse that has public policy consequences (73). In cases of genuine public dilemmas, the state will have to act in a way that has some implications with respect to x, and as a result will not be able to fully satisfy the interests of everyone on both sides of the impasse. When it does so by putting its power and authority squarely on one side of the impasse, as in the case of the federal government s forcibly ending slavery, it in effect declares that side of the impasse the correct side, and Jordan refers to this as resolution by declaration (75, 76). When it finds a way to stake out some kind of middle ground in a way that gives as much as possible to all sides of the impasse, it ensures that there are no absolute victors and no absolute losers in the impasse and that the views of all sides are respected. Jordan refers to this as resolution by accommodation (76), and cites abortion as a possible example (pornography might be another): the government permits its use, but restricts its availability. Jordan then argues, quite plausibly, that whenever a public dilemma must be actively JOURNAL of SOCIAL PHILOSOPHY, Vol. 30 No. 2, Summer 1999, 251 259. 1999 Blackwell Publishers

252 David Boonin resolved, the state should institute a resolution by accommodation rather than by declaration, unless there is an overriding reason that it should take sides, where such reasons typically involve the protection of generally recognized rights (76). With this general framework in place, Jordan then makes the following claims about same-sex marriage in particular (77 78): First, there is a moral impasse over the question of whether or not homosexual acts are morally permissible. Many people think that they are and many think that they are not. Second, whereas engaging in homosexual conduct in itself is essentially a private matter, entering into a relationship of marriage is essentially a public one. Marriage involves a public recognition of a personal relationship between two people and people who are married become eligible for various sorts of public benefits that are unavailable to unmarried couples. As a result, the debate over same-sex marriage represents not merely a moral impasse, but a public dilemma. Third, for the government to sanction same-sex marriage is for it to resolve this public dilemma by declaration in favor of one side of the dispute, in a way that leaves no room for accommodation. If it does this, then members of one segment of the population are faced with a public, state sanctioned matter which they find seriously immoral (78). But, fourth, if the state instead refuses to sanction same-sex marriage, this counts as a resolution by accommodation, provided that the state permits private homosexual acts between consenting adults. If it does this, then each side of the impasse gets some but not all of what it wants and thus neither side is an absolute victor or loser. Fifth, and finally, there is no overriding reason for the state to take sides in this dispute. What is at stake is not comparable to what is at stake in those cases, such as the abolition of slavery, where there is plainly reason for the state to resolve the issue by declaration. If these five claims are correct, and if Jordan s general framework is defensible, the result is that the state should refuse to sanction same-sex marriages. We can represent the argument as follows: P1 If (a) there is a public dilemma about x, and (b) resolution of the dilemma by accommodation is possible, and (c) there is no overriding reason to prefer resolution of the dilemma by declaration, then (d) the state should resolve the public dilemma about x by accommodation. P2 There is a public dilemma about same-sex marriage. P3 It is possible for the state to resolve the dilemma by accommodation if it refuses to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults). P4 It is not possible for the state to resolve the dilemma by accommodation if it sanctions same-sex marriage (since that amounts to resolving the dilemma by declaration and leaves no room for accommodation). P5 There is no overriding reason for the state to resolve the dilemma by declaration. C The state should refuse to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults).

Same-Sex Marriage 253 At the end of his paper, Jordan characterizes the thesis this argument is meant to defend as one on which it is morally permissible for the state to refuse to sanction same-sex marriages (82), but this puts things far too modestly. If Jordan s argument is successful, it shows not merely that it would be permissible for the state to do this, but that this is what the state in fact ought to do. Indeed, if the argument is successful, it is difficult to see how one could avoid the conclusion that it would be positively wrong for the state to sanction same-sex marriages, because it would be wrong for it, in general, to fully favor one side of a moral dispute over another without a compelling reason for doing so. So a good deal is at stake if Jordan s argument is successful. But I want now to show that Jordan s argument is not successful. In section II, I will argue that one of the argument s premises is importantly ambiguous, and that either way of resolving the ambiguity renders two of the other premises false. In section III, I will argue that the argument is undermined by a reductio ad absurdum objection that Jordan tries, but fails, to overcome. And in section IV, I will argue that, contrary to Jordan s characterization of the argument, it does, in fact, presuppose a particular and contentious claim about the moral status of homosexuality. II Let me begin by raising a question about P2: the claim that there is a public dilemma about same-sex marriage. On the face of it, this might seem to be the clearest and least problematic of all of the premises in Jordan s argument. If anything at all about same-sex marriage is uncontroversial it is the fact that it is controversial. But what, exactly, does the claim made by P2 mean? Jordan, remember, defines a public dilemma as a special case of a moral impasse, and a moral impasse as a situation in which people hold genuinely conflicting beliefs regarding the moral status of x. The question is: in the case of the public dilemma about same-sex marriage, what does the x stand for? There are two possibilities: it can stand for acts of homosexual behavior, or it can stand for acts of participating in a same-sex marriage. Jordan at one point speaks of the public dilemma concerning homosexuality, and in particular whether states should sanction same-sex marriages (78, emphasis added), as if there is a single subject of dispute here, but these are in fact two distinct subjects of disagreement. The former concerns the moral permissibility of certain forms of sexual behavior, regardless of whether the people who engage in them are generally heterosexual or homosexual in their orientation. The latter concerns the moral permissibility of granting certain forms of social recognition and public benefits to same-sex couples, regardless of whether or not they engage in such (or any) sexual behavior. 2 Suppose that the genuinely conflicting beliefs that generate the dilemma referred to in P2 are beliefs regarding the moral status of acts of participating in a same-sex marriage. This seems to be the most natural interpretation, since the dilemma itself is about same-sex marriage and

254 David Boonin since a dilemma is simply a special case of an impasse, which is itself a case of conflicting beliefs about something. If this is what is meant by P2, then P3 and P4 are false. P3 says that if the state refuses to sanction same-sex marriages, then it resolves the public dilemma by accommodation (provided that it permits private homosexual acts between consenting adults). If we conflate the two distinct questions about private acts and public benefits into one issue, and think of it as the dispute over homosexuality, then this seems plausible enough. Each side gets some of what it wants, and neither side gets all of what it wants. But if the conflict is over the permissibility of same-sex marriage in particular, as opposed to about the complex cluster of issues relating to homosexuality taken as a whole, then this is no accommodation at all. It is simply a declaration that one side of the debate is entirely correct (those who oppose same-sex marriages) and the other side entirely incorrect (those who support them). It is as if one were to join together the distinct but related debates about whether or not the government should fund the arts and whether or not it should ban violent pornography, announce that the government will permit violent pornography but will not subsidize it, and declare that the debate in question had been settled in a way that accommodates both sides. This would not be a resolution by accommodation of one dilemma, but rather a resolution by declaration of two distinct but related dilemmas. On this understanding of P2, P4 is also false, for similar but distinct reasons. P4 says that if the state sanctions same-sex marriage, then it resolves the public dilemma by declaration and leaves no room for accommodation. But if the dilemma is over same-sex marriage rather than over same-sex sex, this too is incorrect. If accommodation is reached in controversies such as that over pornography or abortion by permitting but discouraging the controversial practice, then the same would hold here as well. The state could sanction same-sex marriage, but make it more difficult to obtain a same-sex marriage license than to obtain an opposite-sex marriage license. For example, it could require proof that a homosexual couple had been engaged for two years before obtaining a same-sex marriage license, but not require such proof from heterosexual couples, or require extensive premarital counseling, or charge a greater licensing fee. And it could discourage homosexuals from marrying in other ways, such as by taxing married homosexuals at a higher rate (higher than married heterosexuals and/or higher than unmarried homosexuals), or making it more difficult for them to obtain divorces or to adopt children than it is for heterosexual couples. None of these suggestions will be fully satisfactory to defenders of samesex marriage, of course. What they demand is marriage for homosexuals that is on an equal footing with marriage for heterosexuals. Nor will any of these proposals be fully satisfactory to opponents of same-sex marriage. What they demand is that there be no such thing as same-sex marriage. But that is precisely the point. If Jordan is correct that dilemmas of this sort should be resolved by accommodation, and if the dilemma is understood to be one over marriage and not over sex, then following a proposal that is fully satisfactory to neither side is exactly what his argument demands that we do. As in other such cases, the state should find a way to allow those who wish to engage in

Same-Sex Marriage 255 the disputed behavior to engage in it while at the same time expressing society s disapproval or at least lack of approval of the behavior in question. Suppose, on the other hand, that the genuinely conflicting beliefs that generate the dilemma referred to in P2 are beliefs regarding the moral status of acts of homosexual behavior. This seems to be what Jordan typically has in mind when he introduces his argument. When he supports the contention that there exists a public dilemma that needs some sort of resolution, for example, he cites the fact that [t]he theistic tradition, Judaism and Christianity and Islam, has a clear and deeply entrenched position on homosexual acts: they are prohibited (77, emphasis added). And he concludes his argument for the claim by saying that [b]ecause many religious people sincerely believe homosexual acts to be morally wrong and many others believe that homosexual acts are not morally wrong, there results a public dilemma (77, emphasis added). But if the genuinely conflicting beliefs that generate the dilemma referred to in P2 are beliefs regarding the moral status of acts of homosexual behavior, then P3 and P4 are again false, for different but parallel reasons. If the state sanctions same-sex marriage, it does not resolve the conflicting beliefs about the moral permissibility of acts of homosexual behavior in a way that leaves no room for accommodation. For example, the state could recognize both same-sex and opposite-sex marriage and make it illegal to have homosexual intercourse outside of such a relation while legal to have heterosexual intercourse outside of such a relation. This would have the effect of permitting but restricting the form of behavior whose moral status is the subject of genuinely conflicting beliefs. So if the conflicting beliefs referred to in P2 concern the permissibility of acts of homosexual behavior, then P4 is false. Similarly, if the state refuses to sanction same-sex marriage and permits private homosexual acts between consenting adults, it does not resolve the conflicting beliefs about the moral permissibility of acts of homosexual behavior by accommodation. Rather, it simply declares that one side of the conflict is the correct side, namely, the side that believes that such acts are permissible. Doing so thus renders P3 false as well. So either way that we specify the meaning of the claim made in P2, the argument as a whole proves to be unsound. III A second objection to Jordan s argument takes the form of a reductio ad absurdum: if the state should refuse to sanction same-sex marriage because it is the subject of a moral impasse, then it should also refuse to sanction mixed-race marriage on the same ground. But the claim that the state should refuse to sanction mixed-race marriage is surely intolerable. So, therefore, is Jordan s argument. Jordan provides three responses to this objection, but none of them are satisfactory. His first response is that unlike the issue of same-sex marriage, the issue of mixed-race marriages does not seem to generate much, if any, controversy today (79). On this account, there is no such public dilemma in the first place, and so it does not matter that Jordan s position would

256 David Boonin justify forbidding mixed-race marriage if there were. This response is unsuccessful for two reasons. First, it is not at all clear that there is no such dilemma about mixed-race marriage. In many communities in the South, at least, there remains substantial opposition to interracial dating, let alone interracial marriage. And although such opposition is traditionally associated with white racists, there is a more recent and hardly less heated controversy within the black community in all parts of the country about whether or not black men, in particular, have an obligation to marry black women. 3 Second, and more importantly, even if Jordan is right that there is no longer a moral impasse on this issue, this response makes the impermissibility of laws forbidding mixed-race marriage contingent on this fact. And surely such laws were impermissible even when many racists supported them. Jordan s second response to the mixed-race objection is to say that even if it does represent a public dilemma, it is one in which there is an overriding reason in favor of resolution by declaration. The reason is that it is a settled matter that state protection from racial discrimination is a reason sufficient for a resolution via declaration while the same is not true of protection from discrimination according to sexual orientation (80). This response fails for the simple reason that a law banning mixed-race marriages does not discriminate against people on racial grounds. It says that every person, regardless of race, is free to marry anyone else of his or her race, and that every person, regardless of race, is prohibited from marrying anyone else of some other race. A white person who falls in love with a black person is adversely affected in just the same way as is black person who falls in love with a white person. And since every black-white couple consists of one black person and one white person, the total number of blacks and whites who are adversely affected in this way is the same. As a result, a law recognizing mixed-race marriage does not protect anyone from racial discrimination that would occur without such a law. A law forbidding same-sex marriage, it is worth noting, is fundamentally different in this respect. It says that a heterosexual man can marry any member of the sex he is attracted to while a homosexual man can marry any member of the sex he is not attracted to, and that a heterosexual man is forbidden to marry any member of the sex that he is not attracted to while a homosexual man is forbidden to marry any member of the sex that he is attracted to. This law does discriminate by sexual orientation, since all of the people who are adversely affected by it (at least directly) are homosexuals. And thus a law recognizing same-sex marriage does protect people from discrimination on the basis of sexual orientation that would otherwise occur without such a law. In short, laws banning mixed-race marriage treat people of all races equally while laws banning same-sex marriage do not treat people of all sexual orientations equally. So Jordan has failed to show that there is an overriding reason for the state to resolve the mixed-race marriage issue by declaration that does not also apply to the case of same-sex marriages. Indeed, if anything, he has pointed to an overriding reason to resolve the same-sex marriage issue by declaration that does not apply to the mixed-race marriage issue.

Same-Sex Marriage 257 Jordan s final response to the mixed-race marriage objection turns on his attempt to identify a second disanalogy between the two cases: A same-sex marriage would involve behavior which many people find morally objectionable; a mixed-race marriage is objectionable to some, not because of the participants behavior, but because of the racial identity of the participants (80). And since objections based on a person s identity are different from objections based on a person s behavior, it does not follow from the fact that the objection to mixed-race marriage should be overruled by a resolution by declaration that the objection to same-sex marriage should also be overruled in this manner. This response must be rejected because it rests on a misdescription of the view held by those who object to mixed-race marriage. It is not that they object to the identity of the individuals involved. White racists need not have anything against blacks marrying other blacks, and black separatists surely have nothing against white people marrying other whites. It is not the identity of the individuals that they object to, but the act they perform: the act of weakening the purity of the race, or of violating the obligation to put one s own community first. In this sense, they are no different from the antihomosexual people Jordan describes: they say they object not to what homosexuals are, but to what they do. IV I have argued that Jordan s argument is unsound, and I have argued that it is subject to an important objection by reductio ad absurdum. In doing this, I have accepted Jordan s claim that if his argument succeeds, it does so without depending on any claims about the moral status of homosexuality. I want to conclude by questioning this claim. I do so by raising a question about the one premise about same-sex marriage that I have to this point set aside. This is the claim made by P5 that there is no overriding reason for the state to resolve the public dilemma about same-sex marriage by declaration. Jordan does not provide specific criteria for distinguishing overriding reasons from less weighty ones, but his comment that they typically involve the protection of generally recognized rights seems to me sufficient for my purposes. The claim that a right is a generally recognized one can be taken in two distinct ways. In the case of the United States prior to the Civil War, for example, there is one sense in which the right not to be enslaved was a generally recognized one. If you tried to enslave a white person during this period, it would have been generally recognized that you were violating his rights. But there is another sense in which the right not to be enslaved was not generally recognized, since it was not generally recognized that it was enjoyed by all people regardless of race. Now if a right must be generally recognized in this second sense in order for there to be an overriding reason for the state to take sides in a public dilemma, then Jordan will be unable to account for the fact that the morally right thing for the state to do was to abolish slavery. Indeed, if this is what is needed in order for there to be an overriding reason for the state to

258 David Boonin so act, then P5 will be vacuous: if a right is generally recognized in this sense, there will for that very reason be no public dilemma about it. So the argument can only succeed if the rights that suffice to underwrite an overriding reason in P5 are ones that are widely agreed to be held by most people, even if many people refrain from attributing them to all people. And this is what creates the final problem with Jordan s argument. For surely it is widely agreed that most people have a right to marry whomever they wish, and to have their marriage publicly recognized. Suppose that the government announced that, starting tomorrow, the state would no longer sanction marriages between heterosexual Jews. For purposes of taxes, child custody, property ownership, next-of-kin visitation rights, and so on, there would no longer be a distinction between married heterosexual Jewish couples and pairs of Jewish people of opposite sexes who happen to live in the same dwelling. Most people would regard this as outrageous. And although I am sympathetic toward those who complain that the language of rights is too often stretched beyond reason, I suspect that most people would object to the edict by saying that it violated a very commonly recognized right, the right of consenting adults to marry whomever they please and to have their marriages publicly recognized. But if it is generally recognized that this is a right that most people have, even if it is not generally recognized that this is a right that all people have, then this is sufficient to establish that there is an overriding reason to resolve the dilemma by declaration in favor of same-sex marriage. It is not sufficient only if there is some morally relevant difference between homosexuals and heterosexuals, just as it would not be sufficient if there were some morally relevant difference between Jews and non-jews. Now I do not mean to suggest that this argument provides anything like a conclusive resolution of the debate about same-sex marriage. It is simply the first step that then leaves open any number of responses that might be given to undermine the claim that if heterosexuals have the right to marry whomever they please then so do homosexuals. My point here is simply that it is very difficult to see how any such response could succeed in vindicating P5 without at some point depending at least in part on the claim that there is a morally relevant difference between homosexuals and heterosexuals or between homosexual and heterosexual relationships. This is precisely the sort of argument that Jordan s argument was meant to avoid. And this suggests that even if his argument were not subject to the objections I have presented in the previous two sections, it would still prove incapable of accomplishing the task it set out to accomplish. Notes 1 Journal of Social Philosophy, 25, no. 1 (Spring 1995), reprinted in Robert M. Baird and Stuart E. Rosenbaum, eds., Same-Sex Marriage: The Moral and Legal Debate (Amherst, NY: Prometheus Books, 1997), 72 83. References in the text are to the page numbers in the Baird and Rosenbaum volume. 2 It is also worth noting that from the mere claim that a certain kind of behavior is morally impermissible, it does not follow that the state should not sanction marriages between people who engage in such behavior. There are genuinely conflicting moral

Same-Sex Marriage 259 beliefs about the permissibility of abortion, contraception, pornography, sexual promiscuity, and the use of animals in medical research, to name but a few, but there is no parallel conflict over whether or not the state should sanction marriages between pornographers, animal researchers, people who use contraception or perform abortion, or who have long and varied sexual histories. 3 That this debate cannot be easily dismissed is shown by Charles W. Mills, Do Black Men Have a Moral Duty to Marry Black Women? Journal of Social Philosophy, 25th Anniversary Special Issue (1994), 131 53.