Monday, April 05, 2004

I know I'm late talking about same-sex marriage; that debate was so last year. Now, it seems, the issue is a political one instead: whether the Massachusetts constitutional amendment will pass, what the higher courts decide on San Francisco's frenzy, and so on. However, I haven't blogged about this until now because I've been thinking before I write (for once), and I didn't want to come up with something flimsy.

I want to actually consider the basis of the debate itself. The reason that so many people have been talking past each other is that proponents of SSM discuss individual rights and opponents discuss the common good. Like it or not (and libertarians don't), the USA, as well as most modern nations, considers both rights and the common good important factors in each decision. And this is as it should be; not everything vital can be explained on the basis of one or the other (libertarianism and utilitarianism are philosophically compelling for their simplicity, but are unfortunately too simple to keep a real country from going to crap).

The government takes many actions with regard to its citizens, some on the basis of the common good, some on the basis of individual rights. To take two examples:

Welfare checks are not an individual right: if they were, then all of us not receiving welfare are simply foregoing our prerogatives. Instead, the government gives assistance to a very particular set of citizens, on the basis of the common good. The state selects welfare recipients on certain criteria and sends checks for the public purposes of providing for this set of people, reducing homelessness and ill consequences thereof, et cetera. Now, with time limits on welfare to encourage recipients to look for employment, the distinction is made even sharper between welfare as an action of society for the common good and for the respect of individual rights.

The right to bear arms, however, is in another class. While the state-sanctioned military organizations exist for the common good, the right to own a gun for oneself is an individual right currently guaranteed by the government of the United States. It's a right which I choose not to exercise at this moment. Sure, it has effects on the common good (both positive and negative), but the basic form of this assurance is one of a sphere of individual autonomy. The right to bear arms, incidentally, is here not an inalienable human right, but a positive right our nation has seen fit to allow (positive here in the sense of positive law, that which may be decided in either direction without injuring the primary purposes of human society).

So, to which of these two classes do marriage licenses belong? Is "marriage a human right", or at least a right guaranteed by the government? I argue that it is not. For one thing, it limits the autonomy of each party rather than extending it. Getting un-married is obviously more streamlined than in the past, but it's rather hard to take it lightly even these days. Furthermore, provisions exist for the spouse of better means to take care of the spouse without (and not only in terms of alimony, I believe; if the wealthier one separates and refuses to provide for the children, isn't there some legal recourse outside of a divorce settlement?).

And if marriage today exists for the direct benefit of anyone, it would have to be the children of marriage. Regardless of how seriously one takes the effects of divorced or unmarried parents, the consensus has always been that a good marriage is the strongest and safest structure for raising children, and studies have borne this out (keeping in mind, of course, the selection bias that those couples who divorce or never marry usually have reasons for behaving as they do, reasons which affect their children). So society, by issuing marriage licenses, is indirectly trying to better the state of the next generation. As such, the marriage licenses exist for the common good.

Granted, a great deal of rights have over the years been given special applications to married couples; to use the most common example bruited about, the right of hospital visitation is severely restricted and has specific exemptions in the case of spouses. In the world of today, where confirmed bachelorhood (bachelorettehood?) is a more recognized option than in the past, it only stands to reason that we ought to allow a person to legally designate one or more others to have the right now extended peculiarly to spouses. So while some of the issues being raised in the context of SSM are rights issues, many of these are detachable in fact from marriage itself.

Okay, so even if marriage is an issue of the common good, does that preclude SSM? Well, good question; it is hard to articulate why I believe same-sex marriage will harm the common good of the family structure*. But the point I'm making here is that (1) the burden of proof (that changing the meaning of marriage is for the common good, and balances out its deleterious effects)** is really on those who wish to alter the institution, and (2) few proponents of SSM have argued on this basis, save occasionally in trying to shoot down other authors' criticisms on the basis of the common good. I fail to see how issuing same-sex marriages will really benefit the couples themselves, apart from extraneous legal rights; there is no analogy between children raised by same-sex couples and married opposite-sex couples; and it at the very least decimates many levels of meaning that have come to be attached to the institution of marriage. As such, I can't support it.

*Of course, I have religious reasons why I believe this as well as non-religious reasons. But while it's perfectly legitimate to decide a complex issue on the basis of theological understanding as well as secular reasoning***, the argument therein doesn't communicate to nonbelievers.

**Added in an update in response to a comment. The sentence was a little ambiguous otherwise.

***If this sounds controversial, I may just write another post on this particular subject.

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