Looking at gay marriage through convoluted and circular logic

Back in February Robert George wrote a long article for the Harvard Journal of Law and Public Policy titled "What is Marriage?" Its purpose is to make sure gays can't get married. It is important because George is considered to be the "most influential conservative Christian thinker," an intellectual heavyweight. Thus, those who work against us will quote from it often. It is also the best our opposition has to offer (which, we'll see, isn't much). But bigotry is still bigotry, no matter how big the words are.

So Rob Tisinai wrote a series of postings (14 parts) to debunk George's article. At least it is thorough. Alas, according to Tisinai, there is to be one or two more postings, but life intervened (see his personal blog) and they haven't been written. I'm presenting it to you now because I got tired of waiting. Besides, with gay marriages in New York beginning tomorrow, this is an appropriate time to discuss the issue.

George's logic is highly convoluted, his logic circular and full of non-sequiturs. I'll say that at the start so I don't have to mention it each time his logic is highly flawed.

First point that George makes: We can't decide if government should recognize same-sex marriage if we don't know what marriage is. Thus the title of his article.

But Tisinai suggests the better first question should be "How should we approach the question, 'What is Marriage?'" So he pauses with Plato, who claimed a thing has an idealized form in a higher realm. On to Aristotle to note we can identify a horse even though the particular horse in front of us varies in size, color, is lame, or has grown old. We can examine all horses to distinguish common, essential traits from individual examples to define the form of a horse. We can also identify development in seeing an acorn become an oak tree. These explanations are, of course, highly simplified.

So, in a manner similar to Plato George, among others, claim there is a pure definition of marriage existing in a higher realm and we only have to bring that into the real world. The endpoint is given and all steps that don't lead there are tossed out. It is irrelevant if no real life marriages match this ideal.

Those who think like Aristotle look at a great number of examples of marriage and deduce essential traits. Things with those essential traits are also marriage.

George begins laying out his case by saying there are two competing views of marriage. The "Conjugal View" (which means the "marriage view") says a marriage (among other things) is "fulfilled by bearing and rearing children together." They are a "reproductive unit." The "Revisionist View" is "essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable."

Tisinai's objections:

* They're not "competing views." Everything described in the Revisionist View also includes the Conjugal View. The two views compete only if one is trying to proved the Conjugal View is the only correct view.

* George has to perform some pretzel logic to say that an infertile straight couple is permissible while a gay couple isn't.

* George assumes a marriage is only "fulfilled" when the couple gives birth to kids. Tisinai responds that many marriages are just fine without kids, others are ruined by adding kids, and besides the government doesn't check to see if the couple has been having sex.

* George is stacking the deck with the term "Revisionist View" because that is the commonly held definition of marriage as practiced by real humans.

George makes the claim: Revisionists aren't content with "expanding the pool of people eligible to marry." The goal is to abolish the conjugal view and replace it with the revisionist view.

That "expanding the pool" comment is a wink at the "slippery slope" argument that gay marriage leads to child marriage and polygamy.

Tisinai says the "abolish" part is simply wrong. Gay activists are not telling people they can't get married and can't have kids.

Back to that slippery slope. George accuses gays of discrimination because we claim to want gay marriage and then won't allow marriage for those who want multiple partners.

Tisinai responds:

Not all distinctions are unjust discrimination. There are some people wanting to get married (such as when one is a child) where there is a very good reason why they shouldn't marry (the child lacks maturity for consent).

Then George aims to prove that marriage isn't simply whatever we say it is. Dan Savage (alas, no link) has said that the definition of marriage is whatever the two people involved say it is. While true, it is too glib. First, we recognize there is a difference between friendship and marriage. Second, we agree that marriage is more than a contract.

Beyond that? George is back to saying there is this ideal concept of marriage out there while Tisinai says let's ask people who are married (or want to be) and look for common traits. Might that change over time? Yup.

Just as our understanding of human nature has changed over time. We (at least most of us) no longer seen women as fragile and inferior, helpless without male protection. Thus, law no longer assigns particular roles to the male and female. Many of us now see homosexuality as a healthy, normal facet of human nature. Thus, two men or two women in love are the same as a straight couple and deserve marriage in the same way.

George says that government has an interest in regulating marriage (agreed) and that government must take the most restrictive definition possible. Tisinai says government must allow a marriage unless there is a compelling interest to intervene (such as one member is not of age to give consent).

George makes the claim that marriage must have (1) a comprehensive union, a link to children, and permanence and monogamy. In addition, (2) only the procreative view of marriage can meet these conditions and the common view cannot. He fails at both.

George tries to define "comprehensive union." Sharing lives? Sex? George says it has to involve or bodies because we're people that live inside bodies. Fine. Then George asserts that this bodily union must serve a biological purpose. But Tisinai responds he leaves out emotional, mental, and spiritual aspects. Sex is not the only thing that keeps a marriage together. One more try by George: We should look at things that the couple can accomplish together that neither partner can achieve alone. Tisinai and his gay partner have found their relationship does exactly that.

George tries again. There is a connection between children and marriage. Marriage is sealed by the generative act (meaning straight sex). Same-sex partnerships cannot be real marriages because they cannot be sealed by the generative act. Thus same-sex partnerships are not oriented to children.

Tisinai responds: What is essential between children and marriage is the commitment and love between the adults, and between the adults and any children there might be. Marriage is not strictly oriented to the children. However, gays can be as oriented towards children as their straight counterparts.

Now that George has established that marriage is sealed by the generative act he says there are norms that shape it. Never mind his use of the word norms implies a community's consent on those shaping ideas and George has claimed the definition of marriage is not defined by the community.

Those norms? Permanence and Exclusivity. George says (1) not all people who claim to be married have real marriages (sweet guy). (2) To be real a marriage must be permanent. (3) The state must only recognize real marriages. Tisinai says that implies (4) we can't tell if a marriage is permanent (and thus real) until one partner dies. (5) So the state can only recognize a marriage of dead people.

I'm reminded of Dan Savage who wrote a book about marriage. He wondered why we consider a marriage a success if it stays together until one dies even though both are miserable.

As for exclusivity, our Judeo-Christian, Greco-Roman tradition has always allowed for divorce. And for much of that time a man was allowed as many wives as he wanted.

The next argument is that allowing gay marriage means we must allow polygamy. George's argument uses terms with obscure meanings (or don't have any meaning), so Tisinai does an end-run and explores reasons why polygamy is a bad idea. From Jonathan Rauch comes this idealized description: Marriage means that when your health fails your partner is devoted to your care. When your emotions are a mess your partner will support and protect. When you celebrate an achievement your partner feels the joy as if it's their own. A partner will give their all to you.

But if a man has two wives than each wife may drop responsibilities assuming the other will handle them. Even worse, each wife can't assume the husband will make her his top priority in times of great need. Polygamy too often turns into exploitation.

The argument that allowing gay marriage leads to allowing polygamy is also used to imply that incest must also be permitted. Tisinai recognizes this as a tough issue and doesn't have an answer. But more importantly, George's logic doesn't have an answer either. He had claimed his view of marriage can account for norms (like our aversion to marriage between first cousins) and our view of marriage cannot.

George attempts to explain a puzzle. Gays can't get married because they can't reproduce. Straight couples who are infertile can still get married even though they can't reproduce. George attempts to do this by focusing on the sex instead of on the relationship. Only an act of bodily union, whether or not it is successful in causing conception, can seal a marriage.

Which means, as Tisinai points out, rape seals a marriage.

George eventually admits:

[M]arriage is not a mere means, even to the great good of procreation. It is an end in itself, worthwhile for its own sake. So it can exist apart from children, and the state can recognize it in such cases without distorting the moral truth about marriage.

Finally, but for the last phrase, something we can agree with. Alas, somehow gay marriage distorts the moral truth about marriage. Apparently only because George says so.

Enough of all that. On to things of importance. Such as what public policy should be. George has been pushing marital norms (not what the common man thinks it is, but what he says it should be). So he says that the less people understand the rationale for marital norms the less they feel bound to live by them. Therefore we can't allow gays to marry.

Well, says Tisinai, George's reasoning is so convoluted and nonsensical, the average person isn't going to make sense of it or bother reading it. So much for understanding the rationale for marital norms. Besides, George's argument for a permanent, stable parental relationship makes more sense for child rearing than for child bearing.

George tackles the fitness of gay parents in raising children. To support his argument he commits the same error as the heads of organizations pushing anti-gay laws (and discussed here before). From George's reputation, however, we expect more integrity. He uses research that says children in an intact family do better than children from a single-parent family or from a family with step-parents. His error is that he claims the research means children from straight families do better than children from gay families. Numerous researchers now put disclaimers in their papers: I didn't look at any gay families so my research does not show that straight families are better than gay families. Tisinai points out that George leaves out another piece of research -- adopted children frequently do better than children raised by their birth parents simply because parents who adopt want those children. Gays frequently become parents through adoption.

On to the subject of marriage equality threatens religious freedom. George is, of course, convinced it does. Tisinai explores an important aspect of the logic (again explored here recently). Does religious freedom trump everything? The American courts have answered that with a no. A religion that allows a child to die while refusing proven medical treatment is liable for damages. Put another way, the welfare of another person is more important than religious freedom. Religious freedom is not more important than anti-discrimination laws.

George and his crowd are quick to point out that they are (supposedly) putting the needs of the child first. Tisinai points out that should include the needs of the children of homophobic adults.

Now to the center of George's argument on this subject. The state cannot be value neutral in the debate over same-sex marriage. If the state approves same-sex marriage than the state must brand those who want only opposite-sex marriage as bigots.

Tisinai replies: The state can be neutral. It already allows Congressional prayers that are not Christian. It pays for both Christian and Jewish military chaplains. All religions, not just Christian, are granted tax-exempt status. All these actions on behalf of other religions does not mean the state has devalued Christianity. In the same way, civil same-sex marriage does not devalue Christianity.

As for the state viewing George as a bigot: Nope. Bigot is not a legal term and the state won't use it. In addition, the state hiring Jewish chaplains does not cause anyone to brand Christians as bigots.

George pulls out several examples of supposed state oppression of Christian organizations because of their expression of religious freedom. Tisinai notes that these groups had no trouble accommodating anti-discrimination laws having to do with religion (a Catholic adoption agency letting Jewish couples adopt). They only had trouble accommodating gays.

The country has long had tension between religious freedom and anti-discrimination laws. That is healthy. That debate began long before gays had any hope of being included in such laws and will continue around different groups in the future. But in this case it was only about religious freedom when the issue is gays. Meaning it isn't about religious freedom.

George claims that the government has an interest in regulating marriage, and in particular has an interest in couples who can procreate (or are otherwise one man and one woman). That interest is in making sure each new generation is "healthy, educated, and well-adjusted." The implication is that gays and children raised by gays are not healthy and well-adjusted.

Tisinai has already examined that implication, so delves into another aspect. Does the state have the right to regulate marriage? Does a person have the right to marriage unimpeded by the state? That, of course, depends on one's view of rights. Tisinai comes down firmly on the side that the state must justify what rights it takes. A person does not have to justify his/her rights to the state.

So if the state shouldn't get in the way of who may marry whom why have marriage law at all? Because there are so many other legal issues wrapped into marriage: Who inherits the house without paying taxes? Who is allowed a spousal claim to Social Security benefits? Who may claim a body from a morgue? Who may sponsor a foreigner for immigration? Who may speak for a child in a health emergency? All these kinds of regulations exist so that a couple can build a life together they cannot build alone and do so with stability.