One of the underlying disputes in the debates about homosexual marriage is what, exactly, is marriage?
So asks and answers Donald Sensing in an essay on his One Hand Clapping blog (What makes a thing a thing?). For Sensing, marriage is about the metaphysical possibility of procreation for heterosexual couples (infertile couples notwithstanding). For me, marriage is about creating and sustaining family.
Actually, the question Sensing is asking is what is the "essential character" of marriage.
Why is this question important? Actually, it is not, unless you accept the underlying "natural law" jurisprudence assumption behind Sensing's essay. The basic concept is that there is a natural order to things that is prior to any man-made law. The jurisprudence is that human law should comport itself to natural law.
Natural law as such doesn't impress me too much (I'm more of a James/Pierce pragmatist), but it can be useful to study and discuss, so let's take a look at what Sensing has to say.
Sensing first sketches out two opposing camps in the debate, the marriage "traditionalists" vs. proponents of gay marriage. According to Sensing, "traditionalists insist that marriage is the legal and sexual union of a man and a woman for the purpose of bringing forth the next generation." In opposition, "proponents of same-sex marriage insist that it is the fulfillment of love and affection they have for one another to which childbearing is incidental." Having staked out two radically diverging positions, Sensing has now properly prepared the ground for a rhetorical middleground of his own devising ... almost.
The next move in the argument is to bring in some "gee, ain't I learn-ed" philosophy. In this case Sensing invokes the ancient (Plato and Aristotle ancient) concept of "The Problem of Universals." Without writing a philosophical treatise, I'll simply copy Sensing's version of three answers (there are other answers) to the "The Problem":
- Nominalism (Roscellinus): only the particular or individual is real. Universal terms are merely a word or a name, a flatus vocis, or "breathing of the voice," entirely subjective and mental, which serves as a sign for common objects.
- Universalism (William of Champeux): Individuality is only an accidental variation or modification of universal essence.
- Conceptualism (Abelard): a kind of moderated realism. Universal concepts are more than mere names and are actually abstractions of general characteristics objects possess in common. These natures do actually exist, but only in the objects which possess them. "Tree" as a universal category is an isolation of the mind of common features present in all trees. But "tree" does not exist as a universal being on its own. Universals are indispensable forms of knowledge we need to know the world.
Try to guess what position Sensing takes before you continue reading.
You probably guessed right: marriage traditionalists are Universalists and proponents of same sex marriage are Nominalists. Sensing rejects these extremist claims for the more sensible middle ground of Conceptualism. In Sensing's words:
The Conceptualist advantage is that it does not require every example to conform to the abstraction in every detail, as the Universalist position does (its real weakness as an argument), and as the Nominalist position holds as irrelevant. [emphasis in original]
Hey, that's great. One small problem, though. Who gets to decide what the permissible exceptions to the rule are? The Conceptualist does, of course. Just perfect for those times when you want to declare that marriage is about the bearing of children. This way you can claim that the very small % of married couples that are same sex and unable to bear children are an impermissible exception to the child bearing rule while the much larger % of married couples who are heterosexual and infertile or no-children-intended couples is a inconsequential exception. See how easy it is to get the result you want?
A Conceptualist argument of marriage could examine the history and results of marriage for literally back to the stone age and identify certain essentials that, as a group, marriage has:
Don't know too much about the sources Sensing has been studying, but as far as I know, the details of social organization and marriage (as such) in the Stone Age are not readily apparent. Being as we have no historical record of the Stone Age, I would be wary of basing public policy on the suppositions of archaeologists, but that's just me. Still, let's look at the examination of history Sensing puts forward:
Marriage has always, in all times, cultures and place, been the union of a man and a woman. There is no reason to doubt that homosexuals have also lived in all those cultures, but there is no evidence that their relationships have ever determined the nature of marriage.
Even if this were right (Canada, Belgium, The Netherlands), it would still be a singularly unpersuasive argument. Indeed, it is kind of stacking the deck. The whole point of the debate is whether or not to permit same sex marriage. The fact of the debate itself kind of assumes that we don't have same sex marriage. Is this what natural law is about? A claim that it has always been thus, therefore what is is natural? This argument is a tad circular isn't it? How does change ever occur?
In any case, what a burden of proof Sensing demands. In every culture I am aware of, homosexuals are in the vast minority, so it is no surprise that their relationships have not determined the general nature of other relationships. For example, until very recently, there was no evidence that existence of homosexuals ever determined the nature of human rights. Does it then follow that homosexuals have no human rights?
It is also rather unfair to place this burden on homosexuals when homosexuality was frequently persecuted throughout history. Some cultures tolerated certain types of homosexuality, but very few granted homosexuals full rights. Hard to imagine homosexuals influencing the nature of marriage when homosexuality was grounds for everything from ostracism to execution. Sensing's argument here is just only if persecution of homosexuals is just.
The affirmation of love and affection of the spouses for one another has only rarely been a cause for marriage in human history. Until recently in the West (including America), the emotional feelings that spouses had for one another was not considered very important; what was important was their social or economic similarity, and their compatibility in a myriad of other ways. Marrying because of love is a latecomer to the scene and is not really the norm in most of the world's people now. There are billions of people living in cultures in which brides and grooms hardly have met before their wedding day.
You know, these arguments from history aren't really valid natural law arguments without something more. Natural law theory holds that human beings have natural rights, such as "freedom of conscience." History will show that prior to the late 18th century such rights were almost never recognized and, even today, are frequently questionable in much of the world and for a majority of humanity. There are billions of people living in cultures in which freedom of conscience doesn't really exist. Does this mean that our concept of human rights, which includes "freedom of conscience," is invalid?
Those poor people forced into arranged marriages might be legally "married," but does that mean their relationships express the "essential character" of marriage? The People's Republic of China would claim that its citizens enjoy "freedom of conscience," but does that mean what happens in Communist China expresses the "essential character" of freedom of conscience?
Save for the exceptions that he himself allows, what Sensing's arguments seem to be about so far is reductionism across all human existence. A thing is only that which is common across all of the various expressions of a thing. However, that doesn't seem to work very well when it comes to concepts that govern and regulate human society. The concept of citizenship, for example, didn't incorporate women. Women, in the vast majority of cases, were second-class citizens. Yet, now the concept of citizenship in many (though not all) cultures includes women. How do Sensing's arguments apply to such cases?
I don't know about Sensing, but I prefer a concept of marriage in which love and affection are part of the "essential character" of marriage, and the fact that some cultures force people into "marriage" doesn't impress me.
Moreover, given that I belive marriage is about creating and sustaining family as part of the development of the individual and since "love and affection" goes a long way toward sustaining family, it thus seems proper to me that "love and affection" are "essential" elements of marriage. Sensing's arguments seems almost biological as if the purpose of humans was merely to replicate, like bacteria or something. Call me an old-fashioned Kantian, but I think social institutions should allow humans to be ends and not means.
The very fundamental purpose of marriage has been and remains the propagation of the next generation. Look at it this way: just as "a hen is an egg's way of making another egg," marriage is the means by which parents become grandparents. While it is biologically possible for children to be born outside the marital bond (obviously), it is empirically provable that what biologists call "survival advantages" of those children is so relatively low that non-marital childbearing is literally a dead end.
This is the crux of Sensing's argument and, frankly, it is just plain weak.
Marriage is a cultural institution, it is not a biological one, but Sensing is claiming that it is biological. What are we, animals? Are we to structure all of our relationships according to Sensing's concepts of biological determinism? I thought human beings developed culture so that we could structure ourselves in ways not dictated by simple biology. We may as well get rid of civilization and live as nature intended, in loose bands, like the other primates.
Do I need mention that homosexuality is also part of our biology, apparently? A number of studies have found homosexual behavior among many different animal species in nature. That sort of makes it natural too, doesn't it? Since evolution hasn't eliminated homosexual behavior, it must also have some "survival advantages" for the species. One could certainly argue that homosexuality has "survival advantages" as far as humans are concerned (they have more time to develop art and scientific advances).
I might also note that this argument from biology creates a pretty good justication for polygamy. Sure, marriage between man and woman is good way to propagate the next generation. However many examples from primate studies as well as human society demonstrate that marriage between man and woman and woman and woman works out pretty good for propagating the next generation as well. And people claim that the arguments in favor of gay marriage justify polygamy.
In any case, Sensing seems to be rather obsessed with the procreation issue. It seems to me what is more important both biologically and culturally is not child-bearing, but child-raising, and that is accomplished by families. In Sensing's terminology, but my argument, procreation seems to be incidental, while raising children in a family seems to be the critical element. Procreation is going to happen whether we have marriage or not. What we need is something called a "family" to ensure the results of procreation propagate.
It seems to me that families are the means by which parents become grandparents. Heterosexual couples are great, but for the vast majority of human history an isolated heterosexual couple would have slim chances of survival. You might say that nuclear heterosexual couples are literally a dead end. Heck, the concept of the nuclear family is a relatively new idea in our conception of marriage (hence, the use of the word "nuclear"). Even today, children in nuclear families are a single accident, firing or other mishap away from slim chances of survival. Want to ensure a child has the best chance to survive? Embed them in an extended family.
And you know something, empirically, homosexuals make great moms, dads, aunts, uncles, brothers, sisters, grandparents and other assorted family members. There is no reason to doubt that homosexual couples would not fill the same niche in families as infertile heterosexual couples. Speaking of which, in Sensing's dogma, infertile couples are sort of accidental, neither here nor there. In my view, infertile couples are as important and valid as fertile couples. Sensing thinks marriage is about procreation, I think it is about family.
Of course, even if marriage is about procreation, why does it follow that marriage is for men and women? Logic would seem to dictate that marriage may be restricted to fertile men and fertile women without harming the biological necessity of propagation of generations. Sure, you can define marriage as for men and women, and there would be propagation. But you could also define marriage for homosexual and heterosexual couples, and there would still be propagation. What is so self-defining about the line that Sensing draws? At least my line gives equal dignity to infertile and fertile couples.
Hence, marriage is self-perpetuating, self-referent upon itself and self-defining. Marriage throughout human history has never needed to be defined be relying on something else. However, same-sex "marriage" has no existence or meaning apart from male-female marriage. Male-female marriage is self-perpetuating within itself; same-sex marriages cannot self-perpetuate within itself at all. In fact, if not for male-female marriage, same-sex marriage cannot occur at all. Self-perpetuation is the critical element of marriage without which a same-sex relationship, no matter how affectionate, fails to be marriage. [emphasis in original]
Nope. Marriage is not self-perpetuating. Families are self-perpetuating. Marriage is a means through which families perpetuate themselves. As such, marriage is neither self-referent nor self-defining. [Of course, if marriage is "self-defining", why are even debating the issue?]
To explain a bit further, and since Sensing brought up the evolutionary metaphors ("a hen is an egg's way of making another egg"), let me run with that concept a little. Let me first point out that that specific metaphor is humorous, but somewhat misleading. Evolution doesn't operate on the basis of individuals, it operates at the level of species. A more accurate statement might be, "a hen is the chicken species' way of making more members of the chicken species." To apply the metaphor to the topic at hand then, marriages are the family's way of making more families. However, evolution teaches us that not all members of a species must procreate in order for the species to thrive. In many species, significant numbers of the species aren't intended to procreate at all (see, ants, bees, etc.).
To say that marriage is self-perpetuating is like saying individuals are self-perpetuating. Individuals do not perpetuate themselves. Species perpetuate, individuals procreate. Individuals are the means through which species propagate, but not all individuals must procreate to enhance the propagation of a species. Just so, some marriages procreate, some marriages do not, but all marriages enhance the propagation of family.
Both heterosexual and homosexual couples can play important roles in the perpetuation of families. Consequently, there is no objective, "self-defining" reason why we can't call both types of committed couples "married." Unless by "self-defining" you mean "tautological."
Sensing is also wrong to claim that marriage "never needed to be defined by relying on something else." Marriage has always been defined as relying on and in relation to something else - the community - orginally, the families involved Marriages must be witnessed and recognized by the community to be valid, whether civil or religious. A heterosexual couple can claim to be "married" but there is nothing to distinguish them from an unmarried couple until the state or church recognizes the marriage. Apparently, Sensing believes a couple can whisper "I thee wed" in each others ears and that is a "marriage."
Elements of marriage such as property rights and the like do not centrally define what marriage is. Indeed, the historical and present record shows that such matters have varied widely across human cultures and experience. The wife as an equal partner is a modern development, but its lack in other times and places does not obviate the essential character of marriage, the procreation of the next generation. The various legal and social rights and recognitions that pertain to married couples are the result, not the cause, of marriage, intended to buttress its central purpose. Therefore, they are added or discarded inasmuch as they do so, though not without other influences as well. Thus, the legal rights and social claims of married partners are incidental, not essential, to defining what marriage is.[emphasis in original]
Sigh. If the legal rights and social claims of married partners are incidental to "marriage", how does one tell an unmarried heterosexual couple from a married one? Both couples procreate. Which of the couples is "married"? Couple One suffers tragedy and the child dies. Couple Two thrives and their child lives on to procreate. Is this the difference that constitutes "marriage"?
Sensing is right that many of the legal rights and social claims of married couples vary significantly and are unimportant with regard to the core of the meaning of marriage. For example, joint tax filing is not part of the "essential character" of marriage. However, there is one legal and social claim that is essential to marriage, and that is recognition of the marriage itself. As I noted above, one is not married unless some community recognizes the marriage as valid. Once recognized, that marriage is valid within that community, regardles of the other incidentals of marriage.
After all, isn't that what this debate is really about? Homosexual couples are demanding that the political community known as the United States recognize their committed relationships as "marriage." Beyond that, homosexual couples are not asking for special privileges, but merely to be treated the same as other marriages within the United States.
Marriage is therefore a social institution, not a merely personal one. All society has a vested interest in the propagation of the next generation and the health thereof. As a social institution, marriage is defined in aggregate, not in particular. This fact argues against a Nominalist position that if two same-sex persons obtain a marriage license, that they are in fact married. It also shows why the pro side's snark that many male-female married couples never have children is irrelevant: out of any random 100 heterosexual marriages, the overwhelming majority will conceive children of their own, within the marriage bond, but out of any 100 same-sex unions, exactly zero will do so. Hence, the lack of children in a small minority of male-female marriages is accidental to what marriage does and what it is for, but the inability of same-sex unions to have children within the bond is inescapably central to their relationship.[emphasis in original]
Hey, I thought that marriage was "self-defining" and "never needed to be defined by relying on something else." No fair changing your argument now. As a social institution, marriage is defined by the society. That is how "social institutions" work. If marriage is "self-defining" then, by definition, it exists regardless of society. I mean, really, how can something be both "self-defining" and "defined in aggregate"? If something is "self-defining" you don't need an aggregate to tell you what it is. Methinks Sensing is a little confused by his metaphysics.
Yep, society is interested in the propagation of the next generation. Of course, I'm putting my money on families, not nuclear marriages, as best propagating that generation. And in my concept of families, committed ("married") homosexual couples can play important roles.
The fact that it is marriage-encompassing families that are critical for propagation, and not the oddly theoretical possibility of procreation, shows why the anti side's snark about reproduction is irrelevant. Out of any random 100 heterosexual and homosexual marriages viewed as parts of a communities and families, fully 100% will be able to contribute to propagation of the next generation. Out of any 100 heterosexual marriages outside of society (if such a thing is definitionally possible) there won't be much of a next generation, and certainly no second generation after that. Hence, the lack of procreation in a small minority of all marriages (both heterosexual and homosexual) is accidental to what marriage does and what it is for, but the inability of isolated, self-defining, non-legally and socially recognized marriage units to propagate is inescapably central to their never needing to be defined by relying on something else.
All of which is to say that marriage is about the creation and propagation of families, whether the members are heterosexual or homosexual.