January 5, 2010 at 11:23 A.M. Jeffrey Gettleman, "After U.S. Evangelicals Visit, Uganda Considers Death for Gays," in The New York Times, January 4, 2010, at p. A1. Any nation that considers death for persons based on what they are -- whether in terms of race, gender, sexual-orientation or religious commitment/non-commitment -- has placed itself on the level of Nazi Germany which "criminalized homosexuality" and "Judaism." This abomination, like the atrocities in Sudan, cannot be ignored by racist Western media, with a shrug of the shoulders, because "it is only Africa." It is humanity that is at issue in this matter. Silence is complicity. I will not remain silent concerning genocide. Death for homosexuals is the protected murder of a genus of humanity. Serious discussions or tolerance of such barbarism, anywhere, is offensive to civilization. This has nothing to do with condoning criminality by lesbians or any other group of people. ("Trenton's Nasty Lesbian Love-Fest!")
November 17, 2009 at 6:55 P.M. "Errors" inserted and corrected. Cuban American National Foundation (CANF)? Additional attacks and "error-insertions" must be expected. The goal is to produce the kind of shock and permanent harm suffered by men in war: nerve damage, emotional shock, paralysis, or damage to memory are common effects of such "touchless torture techniques." They are quite popular at Abu Ghraib and Guantanamo. Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York: NYRB, 2004).
October 1, 2009 at 3:06 P.M. One "error" inserted and corrected since my previous review of this essay. I expected much worse.
September 14, 2009 at 1:15 P.M. An obstruction of my signal made getting on-line a little difficult this afternoon. President Obama's speech concerning financial services was marred only by an obstruction of the t.v. signal that seemed to "squeeze" the picture on CNN for some reason. Harassment continues on a daily basis. I will move to public computers later today, then I will return to this computer. Univision?
September 13, 2009 at 5:55 P.M. An attack on my computer's security system prevents me from updating my protection. I will run scans throughout the day. I will reboot my computer. I will try again tomorrow. This obstruction usually means that essays are being altered or defaced.
I expect sabotage and defacement efforts in response to my posting of this essay. I will do my best to defend the work, every day. Those interested in this essay may enjoy the following works:
Allan Bloom, Love and Friendship (New York: Simon & Schuster, 1993).
John Boswell, Christianity, Social Tolerance and Homosexuality: Gay People in Western Europe From the Beginnings of the Christian Era to the Fourteenth Century (Chicago: University of Chicago Press, 1980).
Hent De Vries, Philosophy and the Turn to Religion (Baltimore & London: John Hopkins University Press, 1999).
Marjorie Garber, Vice Versa: Bisexuality and the Eroticism of Everyday Life (New York: Simon & Schuster, 1995).
Hans Kung, Does God Exist?: An Answer for Today (New York: Doubleday, 1980).
Jean-Luc Marion, The Erotic Phenomenon (Chicago: university of Chicago, 2003).
Martha C. Nussbaum, Love's Knowledge (Oxford: Oxford University Press, 1990).
For the views of two philosophers I admire, from whom I have learned a great deal, who differ with me concerning many aspects of the debate on gay marriage while agreeing with others, please see:
John Finnis, Fundamentals of Ethics (Washington, D.C.: Georgetown University Press, 1983).
Roger Scruton, Sexual Desire: A Moral Philosophy of the Erotic (New York: Free Press, 1986).
I. Introduction.
I recently made a bus trip to Boston. On this occasion, I brought along some magazines as well as a couple of books. I enjoyed reading articles defending totally different perspectives concerning the gay marriage controversy. Robert P. George, "What Marriage Is -- And What It Isn't," in First Things, August/September, 2009, at p. 35 provides what may be called the currently dominant Republican perspective on the issue.
It is inaccurate to describe Professor George's view as the Catholic view because many American Catholics have their own opinions on this issue. The Vatican has not made any position on this question a matter of faith. The Church merely provides moral instruction or guidance concerning such controversial questions. Abortion is an exception in that abortion is defined as sin. Confession and absolution are still available to religious believers who make use of abortion rights. I am pro-choice. Catholics often express disagreement and debate with Church teachings concerning difficult moral questions such as abortion. They are encouraged to do so.
I also read Martha Nussbaum's article, "The Right to Marry," in Dissent, Summer, 2009, at p. 43. This may be described as the liberal Democrat view of the issue. I admire both Mr. George and Ms. Nussbaum. I have read articles and books by these scholars. I recommend these articles to everyone interested in the controversy surrounding this issue. I believe that gays and lesbians have the equal right to marry and not merely to receive something called a "civil union certificate."
My perspective on this debate is different from the views of both of these authors. I will argue that there is, indeed, a right to marry for same-sex couples. However, I will set forth my argument in very different terms from those used by Professors Nussbaum and George. This is an effort to discuss the moral basis for a Constitutional argument within the American legal conversation.
I believe that the proper starting point for discussing gay marriage is the concept of a person. I will set aside that concept, for now. I will begin with a summary of Professor George's argument; I then offer Professor Nussbaum's views, which concur with mine to the extent that we agree on the result that should be reached by U.S. courts, even if we follow different paths to that result. I conclude with suggestions for a future direction in this discussion on the part of proponents of gay marriage rights developing from a Kantian-Hegelian theory of persons compatible with America's Constitution. Among philosophers whose position is close to mine, I include Ronald Dworkin and (from a very different perspective) Duncan Kennedy. I also refer the reader to Judith Butler's writings and Lawrence Tribe's treatise on American Constitutional law.
II. Robert P. George's Religious Traditionalism.
I emphasize, again, that I admire Professor George's writings on the concept of rights and the integral connection of rights with the related concept of a person. Although much of Professor George's discussion focuses on defining "marriage" and what he takes to be the necessary connection between marriage and procreation or child-rearing, there is an unexplored insight in this essay regarding the concept of a person:
"A human person is a dynamic UNITY of body, mind, and spirit. Far from being a mere instrument of the person, the body is intrinsically part of the personal reality of the human being. Bodily union is thus personal union, and comprehensive personal union -- marital union -- is founded on personal union." (p. 35.) (emphasis added)
November 17, 2009 at 6:55 P.M. a new "error" was inserted in the foregoing paragraph. I have now corrected that "error."
This language concerning the person and personal union is not gender-specific nor concerned with sexual-orientation in a great deal of Catholic and secular philosophical/theological reflection on this question. This is a point that will become central to my argument. Love for another person is expressed through the body that is integral to that person. The ways in which gays and lesbians express what they feel, and the persons for whom they feel love and erotic desire, are crucial elements of their identities. The same may be said of heterosexuals. ("David Hume's Philosophical Romance" and "The 'Galatea Scenario' and the Mind/Body Problem.")
To deny legitimacy to some forms of expressing love and to some recipients of love only for some persons in society is to dehumanize those persons who are compelled by their natures to express their romantic love for members of their own gender or sex. I cannot see this denial as anything other than illegitimate discrimination. This is an injury done to same-sex couples or homosexual persons, a denial of their identities, which is really to deny the identities of all of us -- especially of those who differ from the statistical norm. Discrimination based on sexual-preference can only be compared with racial discrimination that is just as invidious and offensive to the U.S. Constitution. (See the film "Code 46.")
I am not surprised that Cuban-American Republicanos are sufficiently upset at these suggestions that they find it necessary to alter the text. I am saddened, however, because many of the gay men I know -- and like -- are Cubanoids whose sufferings at the hands of the swaggering apes who are so prominent in Miami and New Jersey is horrifying and (sometimes) tragic. Even more sadly, many of these swaggering apes are themselves as gay as they come.
There is nothing wrong with Cuban-American men who happen to be gay, but there is something warped and probably homosexual about men from their community who are so "disturbed" by the mere existence of gay friends and relatives. I am not bothered about being called "gay." Perhaps this is because I know who and what I am. Do you know who and what you are? Incidentally, I am a "Cubanoid" or Cuban-American -- although definitely not a Cubanazo, like Mr. Rubio or Bob Menendez. Gay pride parade, Mr. Rubio?
If you are a homosexual Cuban-American man and own a construction company, become a Republican, swagger around a lot, own fancy cars and lots of gold medallions -- you will continue to be a homosexual Cubanazo. Say hello to everyone at the Cuban American National Foundation which is, allegedly, filled to the brim with homosexuals. This may be a good time to insert another "error," caballeros.
"What is unique about marriage is that it truly is a comprehensive sharing of life, a sharing founded on the bodily union made uniquely possible by the sexual complementarity of man and woman -- a complementarity that makes it possible for two human beings to become, in the language of the Bible, one flesh -- and thus for this one flesh union to be the foundation for a relationship in which it is intelligible for two persons to bind themselves to each other in pledges of permanence, monogamy, and fidelity." (pp. 35-36.)
I am sure that such pledges are possible for same-sex and heterosexual couples, equally, and that "complementarity" (sexual and spiritual) is a larger concept than Professor George recognizes. If it is true that, as Carl Jung and many others suggest, there are masculine and feminine sides of all of us, then it is perhaps the union of what is feminine with what is masculine within ourselves and with lovers that the Biblical texts celebrate. Marriage is integration, spiritual and physical. ("God is Texting Me!")
This is a distinction that makes biological organs less relevant than gender-orientations or choices. ("Master and Commander.") The essence of marriage, as defined by Professor George, concerns procreation or the possibility of procreation leading to effective child-rearing. Hence, Professor George says that "truly marital acts differ fundamentally in meaning, value, and significance from intrisically nonmarital sex acts (such as acts of sodomy and mutual masturbation)." (p. 36.)
Not all heterosexual married couples wish to procreate; not all "straight" marriages are concerned with procreation, even as a possibility. Do these marriages therefore become "defective" marriages? I doubt that anyone would wish to make such a claim. Also, the sexual unions of persons -- like all activities of PERSONS -- may be expressive of what is felt for another individual sharing in the profound intimacy of play, including sexual play as love-making. Accordingly, oral sex (which is not unknown even among heterosexuals), and other forms of mutual exploration and delight in the person of the beloved may be expressive of what is felt as a kind of creative or aesthetic activity intended to capture that love in the "art" of love-making as distinct from sex. Indeed, Professor George recognizes the point and seems to explode the boundaries of the distinctions that he hopes to establish when he draws on the writings of John Finnis:
" ... the point of sex is the good of marriage itself, consumated and actualized in and through sexual acts that unite spouses as one flesh and, thus, interpersonally." (p. 36.)
This unity is certainly possible among same-sex couples, who have been known (like heterosexuals) to engage in "sodomitical" and/or "mutual masturbatory" conduct, which is hardly "non-marital sex" merely because it will not result in pregnancy. With loving sexual relations, as with so much aesthetic play and spirituality, the destination is the journey. Professor Finnis correctly notes that:
"... 'The organic unity which is instantiated in an act of the reproductive kind is not ... the unity of penis and vagina. It is the unity of the persons in the intentional, consensual act' of sexual intercourse." (p. 36.)
This same "organic unity" (body and spirit) is available to same-sex couples engaging in sexual activity that is EXPRESSIVE of the love they feel which recognizes or celebrates the personal status of a partner. Love-making is the "organic unity" of partners in a loving relation. Love-making is always celebratory and a form of recognition of the other's uniqueness. Loving unity is surely possible and actual among homosexual lovers who are, in every spiritual and moral sense of the word, married. The evidence of the earliest Christian texts -- the Gospel of Thomas, for example -- suggests a transcendence of gender categories in establishing the spiritual identity of persons in their erotic communities. Elaine Pagels, Beyond Belief: The Secret Gospel of Thomas (New York: Random House, 2003), pp. 227-242. Jesus said:
"When you make the two [male and female] into one, [in yourselves, as Jesus repeats,] you will become children of humanity, [persons,] and when you say, Mountain move from here!' it will move." (p. 240.)
Jesus said:
"Look, I shall guide her [Mary Magdalene] to make her male, [equal to the apostles,] so that she too may become a living spirit resembling you males. [All women are your equals, in other words, including prostitutes.] For every female who makes herself male will enter the Kingdom of Heaven." (p. 242.) ("Elaine Pagels and The Secret Texts of Christianity.")
Elsewhere, Jesus notes that men should be like women, both men and women should be like children. Among the concerns of that "Jewish Jesus" is to undermine these gender-categories, specifically suggesting that masculine females (lesbians) are welcome in the Kingdom of Heaven; the same is true for feminine men (gay "lovers"). The message is simple and direct: "Can you love one another?" I can not imagine a simpler test of the legitimacy or reality of marriage: Do you love one another? If so, then your sexual relationship will be expressive of that love -- however you choose to "make" love to one another. This is the essential religious meaning of marriage in Christianity. I am sure that comparable reflections will be found in all the great spiritual traditions. In fact, I am sure of the celebration of same-sex love in mystical literatures of all faiths. ("'Diamonds Are Forever': A Movie Review.")
Professor George concludes that "Sex is sex. It cannot really unite people as one flesh, but it can enable them to express their affection in a special way." (p. 37.) Love-making -- as distinct from sex -- can and does unite people as "one flesh." Furthermore, you, as a Catholic, are already one spirit or a unity with your gay and lesbian brothers and sisters through the "unity of the Holy Spirit." You share in the absorption of the body of Christ with the entire membership of the faith. This includes many persons whose "calling" is to love others of their own sex, among whom may be included many priests and nuns choosing celibacy. Each time you enter into "Holy Communion" you are part of the Absolute or God, where you must live as a human being in a community.
I write this sentence on the anniversary of 9/11. This was a date when the "community" in which we live in New York and America -- regardless of race, sexual-orietation, gender -- became very obvious to people in this city. All of us suffered. All of us have experienced a loss. Evil is about disintegration, separation, discontinuity; love is about binding, healing, restoring, unity. Is your sexuality and love-making about unity or division? Unity is marriage, whatever you choose to call it. Division is the opposite of the integration you desire and need, both within yourself and with your partner or partners in life. There is no better symbol of marriage than the shattered crystal goblet bound in cloth in a traditional marriage ceremony in Judaism.
The God seen in the person that you love -- regardless of sexual-orientation -- is the one God whose flesh and spirit is shared by all members of the Church or faith that is "present" in every person. This is true regardless of belief or lack of belief on the part of that person. These are symbols that point the way for us in living a moral life. Thus, it is impossible that the LOVING unions of such beings would not be, in the full meaning of the word, "holy." This is what you are here to learn: To love other persons, physically and spiritually, according to your nature. (St. John, who was a nice Jewish boy, said so.)
Speaking of human sexual nature and other things, Thomas Merton explains: "To love our 'nothingness' in this way, we must repudiate nothing that is our own, nothing that we have, nothing that we are." -- This includes homosexual sexual-orientation which is an "enrichment of a person's humanity." -- "We must see and admit that it is all ours and that it is all good: good in its positive entity since it comes from God." Thoughts in Solitude (Boston: Shambala, 1993), pp. 38-39.
Berkeley professor and Episcopal priest, L. William Countryman (who also happens to be a gay man) writes from the perspective of Protestantism:
" ... desire" -- regardless of sexual-orientation -- "is rooted as much in the soul and spirit as in the body. And it is supremely satisfied when it enables a genuinely transcendent union with the beloved, a union that belongs as much to soul and spirit as to body."
Love Human and Divine: Reflections On Love, Sexuality, and Friendship (London & Harrisbourg: Moorehouse, 2005), pp. 39-40.
"Marriage, on this revised understanding, is marked by a plasticity or malleability that sharply distinguishes it from the conception of marriage it is proposed to replace. In this revisionist understanding, marriage is also unnecessary [no, Professor George, it is only reinvented] -- even for child rearing. If two (or perhaps more) people find, or suppose, that the state of being married works for them, then they have reason to marry. [Precisely.] If not, then marriage is not as a matter of principle understood to be a uniquely, or even especially, apt context for them to structure their lives together." (p. 37.)
It takes a village to raise a child. Furthermore, it is a village that we establish through our loving-commitments. Marriage is not best defined as "the unions of heterosexual couples intended to lead to procreation and child-rearing" because this definition leaves out too much that is essential to marriage between "persons" -- like recognition of the loving unions of human beings that is not necessarily intended to (or capable of) producing children.
Many heterosexual couples are excluded from this so-called traditional definition of marriage, as noted by Professor Nussbaum. The kinds of sexual activities engaged in by loving couples is incidental to a proper definition of marriage, within morality and religion, since what is crucial is whether the sexual relations are expressive of love for one another that is felt by the partners in the union, not what it is that people do in the various positions in which they have sex.
Professor George says that "law is a teacher. It will teach either that marriage is a reality in which PEOPLE CHOOSE to participate, [exactly!] but whose contours people cannot make and remake at will, or it will teach that marriage is a mere convention, which is malleable in such a way that individuals, couples, or, indeed, groups can choose to make of it whatever suits their desires, goals, and so on." (p. 38.)
The concern to recognize and exalt loving personal unions, as marriages, reveals the respect many same-sex couples feel for their religious faiths as they understand those faiths. The issue is not to reinvent marriage, necessarily, but to ask what was marriage always really about? Maybe that is reinventing marriage, eternally. What is the essence of the concept of marriage? Why is marriage incomprehensible apart from the foundational concept of a person? Why is the idea of a person linked both to the concept of rights and marriage?
A great philosopher and theologian, Jesus Christ, taught us that "the laws are made for men and women." Persons are not made for the sake of laws. Marriage exists "for you," all of you. You should not truncate or deform your loving relationships because they do not fit into an overly narrow or outdated understanding of a marriage state and sacrament that is intended to be eternally evolving, like the love which is "undifferentiated" in which we participate. That love is called "God." These are metaphors through which we understand our life's journeys as well as our connectedness to one another and the universe.
"When the Oriental gurus come over here, they say, 'What does it matter if someone rose from the dead two thousand years ago? Are you rising from the dead today? Are you pulling your spiritual, your human consciousness out of your animal base [Eros, love-making] and letting the animal base [sex] become spiritualized in your life experience?' [Marriage] They're right. That's what's important. And that's what the myths [religious stories] are about."
Joseph Campbell, in Fraser Boa, ed., The Way of Myth: Talking With Joseph Campbell (Boston & London: Shambhala, 1994), p. 29. (This message is beyond gender or sexual-orientation.)
III. Martha Nussbaum's Jurisprudential Approach.
"Before we approach the issue of same-sex marriage," Martha Nussbaum writes, "we must define marriage. But marriage, it soon becomes evident, is no single thing. It is plural in both content and meaning. The institution of marriage houses and supports several distinct aspects of human life: sexual relations, friendship and companionship, love, conversation, procreation and child-rearing, and mutual responsibility. Marriages can exist without each of these. ... Marriages can exist where none of these is present, though such marriages are probably unhappy." (pp. 43-44.)
Let us begin by asking "What kind of beings enter into marriages?" It may turn out that the complexity and protean nature of the marriage state is a reflection of the variability of human nature and needs in life-long loving-unions. As far as we know, marriages are possible only for "persons." If this is accurate, if persons are self-aware moral creatures whose freedom directs them (us) to love others and to establish communities of love, then an essential component of marriage -- as a concept and social-legal institution -- must be expressive.
Persons are, essentially, freedoms directed at loving others and interacting with all others morally. The concept and institution of marriage expresses and must remain a reflection of human freedom (person = freedom) directed at love as well as loving that results in being loved. Loving others creates a circle. This observation returns us to the concept of marriage.
Since persons possess freedom and are capable of self-reflection, they are (necessarily) beings of infinite value and capacities who are entitled to respect for their AUTONOMOUS choices that are reflective and constitutive of their rights -- not least of their rights to expressive freedom with regard to matters in the moral and spiritual realm where all persons are, and must always be, equals. (Immanuel Kant, John Rawls) Among contemporary philosophers, Jean Paul Sartre, Simone de Beauvoir, Judith Butler and many other thinkers may be quoted in support of these arguments, including Martha Nussbaum, who has testified "for" gay marriage rights.
This claim of equality and respect is a matter of right. This truth is not altered by the reality of evil in the world. It only means that there are many sadly deluded persons for whom others are not "real" (as persons), but are seen as "objects" that are either instruments or obstructions to one's will. Such a view of others is a kind of dangerous pathology that almost always results in great evil. It allows for the destruction of the writings of others, for example, and even for violence against those who presume to disagree with you. ("Is Western Philosophy Racist?")
"Marriage has ... an expressive aspect. When people get married, they typically make a statement of love and commitment in front of witnesses. Most people who get married view that statement as a very important part of their lives. Being able to make it, and to make it freely (not under duress) is taken to be definitive of adult human freedom. [Precisely.] The statement made by the marrying couple is usually seen as involving an answering statement on the part of society: we declare our love and commitment, and society, in response, recognizes and dignifies that commitment." (p. 44.)
Marriage is a dialectic between persons and among persons and their communities. Society has chosen to "recognize" some unions as "legitimate marriages." The unions of heterosexual couples, exclusively, are called marriages with some marginal restrictions. The essence of this limited and diminished existing public recognition for only some marriages is not, in fact, concerned with child-rearing or legitimacy. No legal condition on marriage requires procreation. There are plenty of children born outside of wedlock. Society takes little notice of the fact these days. Legitimacy in marriage should focus on love and not gender or desire for children. ("John Finnis and Ethical Cognitivism.") Professor Finnis may well disagree concerning gay marriage rights, but his writings lend support to proponents of such marriages.
Marriage, as a legal institution, is also not really about contested spritual values as distinct from autonomy in a society that struggles to maintain a religiously neutral public square. Conventional views of marriage are rationalizations, in my opinion, that are aimed at justifying, objectively, denying recognition to same-sex marriages. There is no valid basis for such a denial of marriage rights to same-sex couples. I think it was Gore Vidal who said: "Why should same-sex couples not be as miserable as their heterosexual counterparts?"
Your spiritual values are your business. Hence, what is celebrated -- according to your understanding of spirituality -- should also be your business. This celebration may involve relationships that are about what you "deem" to be of spiritual and moral value in your life. When society grants benefits and authorizes the spiritual beliefs of some persons, however, then it will have to accord equal respect to the comparable beliefs and practices of all others in society who seek similar recognition and respect by means of public authorizations and benefits.
Some marriages are not called marriages because of irrational prejudice. Once we grant the autonomous status of persons; then admit that homosexuals are persons; the only conclusion that follows is that RESPECT for individual autonomy requires our recognition of the marriage state, equally, among all persons in a free society -- regardless of how marriage is defined by the various persons entering into "matrimony."
We cannot say that we will remain neutral concerning secular values and spirituality -- however they are defined by persons -- but also that we will choose to recognize some conceptions of marriage and not others, especially when the real basis for that determination is a set of contested religious values. As a society, despite our public rhetoric of equality, we appear to admire some understandings of love and not others, conferring benefits and opportunities on persons holding some spiritual values but not others. This attitude smacks of hypocrisy and inconsistency. We are intolerant of dissenting views on religious or amorous questions, while proclaiming a fundamental commitment to equal tolerance of all views as well as autonomous expressions concerning such questions.
Many traditionalists on the marriage question are people who want to say that marriage is a state freely entered into by persons that is reflective of the love that they feel which should be defined as one sees fit, autonomously. Society should recognize unions as marriages because persons want that recognition and are willing to pay the $10.95 for the necessary license. However, those same traditionalists also want to deny recognition to homosexuals because "homos are just weird." Weirdness, as I can attest, has never been grounds for denying people the right to marry.
What is a "weird" expression of love -- a love which is identical to what heterosexuals feel for one another -- is a highly individual determination. Nuclear families in a fifties mold strike me as bizarre to the point of being surreal these days, especially when created by immigrants who would have been excluded from bridge and bingo in suburban Connecticut in the Eisenhower era. Nevertheless, I am tolerant of the life-styles of others and respectful of their fantasies and choices. ("'Revolutionary Road': A Movie Review.")
Traditional religious concepts provide no basis for such a conclusion ("If you're gay, you can't get married!") because not everyone accepts such doctrines. Furthermore, many people have reinterpreted religious practices to conform with other kinds of understandings of ourselves and our increased knowledge of the universe. This is what should happen to our religious narratives and wisdom. These religious traditions are part of a constant process of hermeneutic reconstruction and deconstruction. Eternal does not mean rigid or unchanging. Marriage can be eternally developing, growing, deepening. We no longer sell slaves, burn witches, torture scientists under the Inquisition's watchful eye because of a deeper understanding of the values in our religious traditions, not because we have abandoned those values. (Ricoeur and Derrida) An analogy to the development of American Constitutional understandings is obvious to me.
Traditionalists want to deny marriage rights to gay men and lesbian women because "they have sex in weird ways." Well, I like sex in as many ways as possible, the weirder the better. However, society allows me and other men and women, like me, to marry. No government official knocks on your door at 11:00 P.M. (I hope!) to verify that your sexual life is "normal," whatever that means, provided that you are a heterosexual. But see the now rejected decision in Bowers v. Hardwick. Many Republicans would like nothing better than to arrange such a thing (sexual normality inspections) even as they argue for "small government." Most people sense that marriage is about more important things than sex, like love. Perhaps Senator Cardinale in New Jersey will agree that government should get off our backs and fronts.
November 17, 2009 at 7:34 P.M. A second "error" was inserted in this essay aimed at maximizing frustrations after the experience of posting "The Heidegger Controversy." The goal of these tactics is to silence dissidents by inflicting emotional damage and exhausting writers forced to make identical corrections dozens of times. For a study of hypnosis and frustration as well as anxiety in these efforts at control, use of financial pressures and attacks on self-esteem are also typical, please see: E.F. Deshere, "Hypnosis in Interrogation," in http://www.parascope.com/ds/articles/hypnosisDoc.htm .
I urge those who witness these crimes to examine Alfred W. McCoy's, A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror (New York: Metropolitan Books, 2006), pp. 80-81. (Catholic priest speaks of his torture, at the hands of the CIA, as a "perverse theater in which he is compelled to play the lead in the drama of his own humiliation.")
Lots of people have and want sex with others whom they have no intention of marrying. I am always suspicious concerning a woman's intentions when she invites me to dinner. Others may love and wish to marry persons who are incapable of sex because of age or infirmity. We know that there is a difference in sexual relationships and loving erotic unions that are intended to last for a lifetime. We understand, again, that there is a crucial expressive component in marriage. These expressions are entitled not only to respect, but also to protection as a core value in America's "Constitutional Republic." First Amendment religious and speech protections become relevant to such determinations, also liberty under the Fourteenth Amendment and equal protection as well as due process of law and privacy. ("What is it like to be tortured?")
"The expressive dimension of marriage raises several distinct questions. First, assuming that granting a marriage license expresses a type of public approval, should the state be in the business of expressing favor for, or dignifying, some unions rather than others? [We are doing that already.] Are there any good public reasons for the state to be in the marriage business at all, rather than the civil union business? Second, if there are good reasons, what are the arguments for and against admitting same-sex couples to that status, and how should we think about them?" (p. 45.)
Clearly, government needs to play a role in recognizing marriages because all legal relationships between marriage partners and others change dramatically with entry into the marriage state. The raising of children and their safety as well as "thriving intellectual-emotional development" necessitates a strong governmental component (perhaps too strong or meddlesome in many cases) as employees of local government begin to substitute their values and preferences for those of family members, or to deprive children and families of autonomy. Fundamentally, respect is at the core of this necessary recognition.
We want to celebrate and recognize the self-chosen unions of persons as equally worthy and good when they accomplish identical goals of promoting stability, peace, cooperation and efficiency in social relations. This is something that good relationships of all kinds accomplish. We want to help and not hurt family unions. The concept of "family" should be understood broadly to fulfill these individual and social goals. From the point of view of society, it is good when people love one another.
"What we're seeing today as five states (Massachusetts, Connecticut, Iowa, Vermont, and, briefly, California) have legalized same-sex marriage, as others (California, and Vermont and Connecticut [even New Jersey, in a way,] before their legalization of same-sex marriage) have offered civil unions with marriage-like benefits, and yet others (New York) have anounced that, although they will not perform same-sex marriages themselves, they will recognize those legally contracted in other jurisdictions, is the same sort of competitive process -- with, however, one important difference. The federal Defense of Marriage Act has made it clear that states need not give legal recognition to marriages legally contracted elsewhere." (p. 47.)
The essential reason for recognizing marriages is that persons who are entitled to equal respect and autonomy have created those marriages. The dignity of persons -- the right to create their own loving-unions as they define and desire them -- demands the attention, concern, and recognition of society because society has already afforded that same recognition to the marriages of some persons in the community, celebrating some chosen unions (whether sanctified by religious beliefs or not), and therefore society must provide the equal recognition and (I think) celebration of all loving marital unions, especially those excluded from recognition in the past. Marriage "elevates" relationships to a special place in human and societal "lives."
The crucial consideration is less the understanding of marriage than what we mean by a person as a locus of rights and responsibilities, as an autonomous agent whose inner life is self-determined and ennobled through that self-determination, whose being is inconceivable without some appreciation of the concepts of freedom and love for each individual. I suggest that for all persons these concepts (freedom and love) will be entangled. Furthermore, the entanglement will include traditional concepts of God. ("Is it rational to believe in God?")
All of these aspects of persons as beings-in-the-world with others (Sartre, Ricoeur, Derrida, Butler) will come together in the institution of marriage. Denying marital recognition is denying identity. This denial is the rejection of the status of full humanity -- or "person" -- to some of us and not to others. This is illegitimate discrimination that creates a class of "sub-persons" in society entitled to less than full respect in their relationships. Invidious discrimination by government is subjected, usually, to heightened scrutiny by judges who will be more likely to find such discrimination unconstitutional and not merely immoral in the absence of compelling state interests for discrimination. Please see Gore Vidal's essay "Pink Triangle and Yellow Star."
What I wish to communicate to gay and lesbian friends is that they would be wearing pink triangles, I would be wearing a red circle (socialist), others would be wearing yellow stars (Jews) -- but we would all be in a concentration camp in Nazi Germany. It is important to understand why all of these groups were demonized as representative of outsiders or "abnormals." It still amazes me that there are people who wish to kill anyone who merely states such views concerning gay marriage rights. This is an important reason for those of us who believe that gay men and lesbian women have such rights to state these opinions, publicly.
It is hardly surprising that the closest analogy to the gay marriage controversy in law is to miscegenation cases and statutes prohibiting marriages between whites and blacks, or members of several different races at the time of Loving v. Virginia. Nussbaum comments: " ... marriage is a fundamental liberty right of individuals, and because it is that, it also involves an equality dimension: groups of people cannot be fenced out of that fundamental right without some overwhelming reason." (p. 53.)
No plausible or sensible reason has been offered for exclusion of gays from the marriage state that is neutral with regard to the religious beliefs of persons. Equally unpersuasive are secular moral determinations that same-sex marriages are "evil." Most rationales for denial of marriage rights are transparently based on prejudice or hostility to gay persons. I think that torture, rape, censorship and theft are evil. Gay marriage is peachy keen with me.
What compelling state interest justifies forbidding same-sex marriages? Child-rearing does not provide a rationale because children do equally well in homes with same-sex parents who provide loving care as in households with parents of different sexes offering the same care. For those who are religious, there are outstanding theologians of all the religious faiths offering defenses of same-sex marriage as equally valid and good when compared with different-sex marriages. Moral philosophers also defend same-sex marriages as good. Most authorities seem to agree on the centrality of love to determining the morality of marriage unions.
" ... all adults have a right to choose whom to marry. They have this right because of the emotional and personal significance of marriage, as well as its procreative potential. This right is fundamental for Due Process purposes, and it also has an equality dimension. No group of people may be fenced out of this right" -- to do so is to exclude them from humanity or the status of persons before the law -- "without an exceedingly strong state justification." (p. 54.)
Professor Nussbaum provides the comment of a person who suffered greatly from the miscegenation laws eventually struck down by the U.S. Supreme Court. This statement must express what is felt by many gay men and lesbian women of my generation and older persons:
"My generation was bitterly divided over something that should have been so clear and right. The majority believed ... that it was God's plan to keep people apart, and that government should discriminate against people in love. But ... [the] older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the 'wrong kind of person' for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, [sic.] should have that same freedom to marry." (p. 48.)
IV. Conclusion: "It's not personal."
There is no position concerning marriage that is "impersonal" for those who hold it. There is no way to think about your relationships and how much they mean to you that is impersonal. More importantly, how we love and why we need to love others is essential (not incidental) to what we understand by a person or ourselves.
A person is a locus of rights and responsibilities, a self-determining freedom in the world connected, necessarily, to others. Part of our journeys in life is expressive. We are constantly saying, explicitly and implicitly, this is who we are and what we value. These are the people and nations I love, within whose histories I exist and must "be." I am a dying animal and so are you. Hence, this universe of values is where I place my subjectivity, the remnants of my selfhood, as I depart the scene. These are the persons whose trajectory intersects with mine, whose being is linked to mine. Through one another's lives we connect with and make up this universe of meanings in which we all matter. We do this eternally, now. Our love is meant to adorn the stars in the universe forever. This is wonderful. This is good. This love is how we share ourselves with all of life and the universe, eternally. ("Is it rational to believe in God?" and "Is this atheism's moment?")
To deny me the right to recognition and expression of my self-chosen unions -- whoever I may be in society -- is to deny and disconfirm my identity. I am a person. I am not a machine. I am not an inanimate object. I am a source and namer of values. I am an entity that values. My valuing is expressive of the meanings in which my being unfolds. My identity is shared with a few (and, ultimately, with all) others in a culture and system of public values forming a necessary unity. To deny one of those central relationships due recognition -- even as my neighbor's relationships are celebrated and respected, properly -- is to disconfirm my identity. Furthermore, the injury done to my gay neighbor by denying his (or any lesbian's) identity is also being done to me. Next week the category of "sub-person" will include people like me. ("'Inception': A Movie Review.")
This denial of my love is a rejection of my humanity that causes the networks of meaning in which we all live to fragment, divide, and disintegrate. It is a wound to my humanity, but also a denial of the unity or identity of my community because the equality of its members is destroyed.
The deepest relationships of all persons in society must receive equal respect as matter of according due consideration to the religious and secular values of persons entering into those relationships, freely, and seeking the recognition of fellow citizens. Every person -- including the mentally ill and prison inmates or very old people -- has the right to be loved and to love others. Every person has the equal right to receive respectful recognition of his or her loves from others in society, especially from the state, as matter of humanity. No one is "beyond" loving and being loved.
You are a person who is free to determine the persons you will love, over your lifetime, and to express all of your loves, receiving the recognition of all other members of the community for what is your emotional truth and life. We will not discriminate between the loves of persons. We will not say: "This love is good." We will not decide: "That love is bad."
Marriage must follow from this understanding of the autonomy and dignity of persons in their loving relationships. Marriage is derivative from our understanding of persons. It is because persons are autonomous beings who are self-legislating that their self-chosen unions merit equal respect. We have a right to such recognition and solidarity. (Immanuel Kant, John Rawls, William J. Brennan) Please see my essay, "Roberto Unger's Revolutionary Legal Theory."
This understanding comports with the structure of principles underlying and expressed in the American Constitution. Freedom with equality limiting the power of government to encroach on fundamental zones of entitlement, like privacy. Autonomy over one's own body, procreative choice, and self-determination as to sexual relationships and intimacy are only part of this network of principles. Gay marriage is not some benefit handed out by government as a gift. The same is true of free speech. The RIGHT to marry is a matter of fundamental integrity which society must recognize for all persons, including same-sex couples. This national recognition is long overdue.
