SQUARE PEGS AND ROUND HOLES

         


                                                          Same-Sex Marriage

Continuation of discussion of Massachusetts Supreme Court Case--




    Notwithstanding its emphasis on freedom of choice, the Massachusetts court made clear that it did not intend to open the way to polygamous marriage. It didn't question the notion that government may confer social recognition on some intimate associations rather than others. Nor did the court call for the abolition, or disestablishment, of marriage. 
   To the contrary, Justice Marshall's opinion offers a paean to marriage as "one of our community's most rewarding and cherished institutions." It argues that eliminating state-sanctioned "would dismantle a vital organizing principle of our society." 
   Rather than abolishing state-sanctioned marriage, Marshall argues for expanding its traditional definition to include partners of the same sex. In doing so, she steps outside the bounds of liberal neutrality to affirm the moral worth of same-sex unions, and to offer a view about the purpose of marriage, properly conceived. More than a private arrangement between two consenting adults, she observes, marriage is a form of public recognition and approval. "In a real sense, there are three partners to every civil marriage : two willing spouses and an approving State." This feature of marriage brings out its honorific aspect : "Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family."
   If marriage is an honorific institution, what virtues does it honor ?  To ask that question is to ask about the purpose, or telos, of marriage as a social institution. Many opponents of same-sex marriage claim that the primary purpose of marriage is procreation. According to this argument, since same-sex couples are unable to procreate on their own, they don't have a right to marry. They lack, so to speak, the relevant virtue.
   This teleological line of reasoning is at the heart of the case against same-sex marriage, and Marshall takes it on directly. She does not pretend to be neutral on the purpose of marriage, but offers a rival interpretation of it. The essence of marriage,  she maintains, is NOT PROCREATION but an exclusive, loving commitment between two partners ---be they straight or gay. 
   Now, how, you might ask, is it possible to adjudicate between rival accounts of the purpose, or essence, of marriage ? Or is it simply a clash of bald assertions ---- some say it's about procreation, others say it's about loving commitment --- and there's no way of showing one to be more plausible than the other ? 
   
      HEY DARLINGS, READ THIS NEXT PARAGRAPH

    Marshall's opinion offers a good illustration of how such arguments can proceed. First, she disputes the claim that procreation is the primary purpose of marriage. She does so by showing that marriage, as currently practiced and regulated by the state, does not require the ability of procreate. Heterosexual couples who apply for marriage licenses are not asked about "their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may marry. " While "many, perhaps most married couples have children together (assisted or unassisted)," Marshall concludes, "it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage." 
   So part of Marshall's argument consists of an interpretation of the purpose or essence of marriage as it currently exists. Faced with rival interpretations of a social practice --- marriage-as-procreation versus marriage-as-exclusive-and-permanent-commitment--how can we determine which is more plausible ? One way is to ask which account makes better sense of existing marriage laws, taken as a whole. Another is to ask which interpretation of marriage celebrates virtues worth honoring. What counts as the purpose of marriage partly depends on what qualities we think marriage should celebrate and affirm. This makes the underlying moral and religious controversy unavoidable : What is the moral status of gay and lesbian relationships ?
   Marshall is not neutral on this question. She argues that same-sex relationships are as worthy of respect as heterosexual relationships. Restricting marriage to heterosexuals"confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. 
   So when we look closely at the case for same-sex marriage, we find that it cannot rest on the ideas of nondiscrimination and freedom of choice. In order to decide who should qualify for marriage, we have to think through the purpose of marriage and the virtues it honors. And this carries us unto contested moral terrain, where we can't remain neutral toward competing conceptions of the good life. 

                      JUSTICE AND THE GOOD LIFE 

   Over the course of this discussion of justice and what's the right thing to do, we've explored three approaches to justice. One says justice means maximizing utility or welfare--- the greatest happiness for the greatest number. The second says justice means respecting freedom of choice ---either the actual choices people make in a free market (the libertarian view)or the hypothetical choices people would make in an original position of equality(the liberal egalitarian view). The third says justice involves cultivating virtue and reasoning about the common good. I favor a version of the third approach. Let's look at the reasons why.
   The utilitarian approach has two defects : First, it makes justice and rights a matter of calculation, not principle. Second, by trying to translate all human goods into a single, uniform measure of value, it flatters them, and takes no account of the qualitative differences among them. 
   The freedom-based theories solve the first problem but not the second. They take rights seriously and insist that justice is more than mere calculation. Although they disagree among themselves about which rights should outweigh utilitarian considerations, they agree that certain rights are fundamental and must be respected. But beyond singling out certain rights as worthy of respect, they accept people's preferences as they are. They don't require us to question or challenge the preferences and desires we bring to public life. According to these theories, the moral worth of the ends we pursue, the meaning and significance of the lives we lead, and the quality and character of the common life we share all lie beyond the domain of justice.
   This seems to be mistaken. A just society can't be achieved simply by maximizing utility or by securing freedom of choice. To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture 
hospitable to the disagreements that will inevitably arise. 
   It is tempting to seek a principle or procedure that could justify, once and for all,  whatever distribution of income or power or opportunity resulted from it. Such principle, if we could find it, would enable us to avoid the tumult and contention that arguments about the good life invariably arouse. 
   But these arguments are impossible to avoid. Justice is inescapably judgmental. Whether we're arguing about financial bailouts or Purple Hearts, surrogate motherhood or same-sex marriage, affirmative action or military service, CEO pay or the right to use a golf cart, questions of justice are bound up with competing notions of honor and virtue, pride and recognition. Justice is not only about the right way to distribute things. It is also about the right way to value things.