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The Evolution of the Case Against Same-Sex Marriage
We have reached a moral, legal and demographic tipping point in the controversy. Many signs point to an imminent marriage revolution: gay and lesbian Americans across the country will enjoy a right to marry — maybe before the end of the year.
Note: This is an edited version of a Praxis post originally published on December 21, 2012.
The preacher in Ecclesiastes was wrong: there is something new under the sun, or at least something new on the horizon. This week, with two cases to be argued and decided by the Supreme Court, we are likely to see the beginning of the end of the debate over same-sex marriage in the United States.
Die-hards against marriage equality will stick to their guns. Rick Santorum will continue to warn that gay marriage will “destroy the institutions of America’s foundation” and equate homosexuality with “man on child, man on dog, or whatever the case may be.” Maggie Gallagher will still contend that gay marriage is the scourge of the century and devote her life to fighting against it.
But we have reached a moral, legal and demographic tipping point in the controversy. All signs point to an imminent marriage revolution: gay and lesbian Americans across the country will enjoy a right to marry — maybe before the end of the year.
The evolution of the case against same-sex marriage has been swift. The natural law argument rooted in Catholic doctrine was dominant in the 1990s and early 2000s. When this narrative wore thin, conservative legislators pivoted to less esoteric arguments with wider appeal about the welfare of children raised in same-sex households. And when these worries were found to be mutually contradictory and empirically baseless, the case against marriage equality moved to the constitutionally frail claim of last resort: the contention that individuals can be excluded from a civic benefit if their lifestyles are seen as morally distasteful by a political majority.
Here is the story of how far the argument against marriage equality has come, and how feeble it has become, in three steps.
#1: Same-sex marriage is unnatural
Harry Jaffa made this point most bluntly and forcefully in 1989: Using “men as if they were women, or women as if they were men...violates the order of nature.” He expanded on this view here:
Mankind as a whole is recognized by its generations, like a river which is one and the same, while the ever-renewed cycles of birth and death flow on. But the generations are constituted — and can only be constituted — by the acts of generation arising from the conjunction of male and female. The distinction between a man and a woman is not only in itself according to nature, but is the very distinction by which nature itself is constituted. Lincoln once said that if slavery is not unjust, nothing is unjust. On the same premises, if sodomy is not unnatural, nothing is unnatural.
I am tempted to write, “if this is not an awful argument, no argument is awful,” but let’s try to be more charitable for a moment. It is true that sexual relations between same-sex partners cannot result in procreation, and there is a biological reality, a naturalness, to the “distinction between a man and a woman.” But it does not follow, in a world where human beings routinely have sex for non-procreative purposes, where condoms and birth control pills are ubiquitous, where Viagra and testosterone replacement therapies are hawked on prime-time television, where surrogate motherhood and in vitro fertilization are common methods of conceiving a child, that homosexual sex is anywhere near the practice most divorced from the order of nature, or that “unnaturalness” should disqualify homosexual couples from taking marriage vows. In a groundbreaking article in 1995, political theorist Stephen Macedo noted another sense in which Jaffa erred:
[W]hat do we make of the fact that nature has made...many people attracted to members of their own sex? Leading natural lawyers in the Catholic tradition now allow...that homosexuality is an unchosen condition and ordeal for many homosexuals. This concession calls for a sympathy completely lacking in Jaffa’s arguments.
Instead of sympathy, conservative academics prefer to assign shame to homosexuals. Macedo quoted Harvard professor Harvey Mansfield, for whom the libido is “a tyrannical passion of overwhelming strength” that cannot be quelled by reason alone. The only effective counterbalance to the fire of lust is “shame.” Echoing Jaffa, Mansfield wrote,
For if the practices of homosexuals are not shameful, what is?
Rhetorical questions masquerading as arguments, for one. But there are less shameless and less overtly hostile claims against homosexuality in the natural law tradition. For John Finnis, a professor of law at Oxford, “masturbatory” heterosexuality is just as contrary to nature as intercourse between partners of the same sex:
For: a husband and wife who unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, do function as a biological (and thus personal) unit and thus can be actualising and experiencing the two-in-one-flesh common good and reality of marriage, even when some biological condition happens to prevent that unity resulting in generation of a child. Their conduct thus differs radically from the acts of a husband and wife whose intercourse is masturbatory, for example sodomitic or by fellatio or coitus interruptus. In law such acts do not consummate a marriage, because in reality (whatever the couple's illusions of intimacy and self-giving in such acts) they do not actualise the one-flesh, two-part marital good.
This equal-opportunity moralizing is a significant step up from the animus of Jaffa and Mansfield, but it is not likely to attract much popular support. At least 80 percent of men and women in the United States have had oral sex, and masturbation is not a rarely committed sin in the land. It would be understating matters a bit to claim that Finnis’s preferred moral universe is distant from the American reality. In 2003, the U.S. Supreme Court ruled without much fuss among the general population that banning sodomy — the practice Jaffa had declared irredeemably unnatural — was inconsistent with basic constitutional liberty. To appeal to the masses, conservatives had to turn to another line of attack.
#2: Same-sex marriage will hurt children
In 2005, reflecting on the congressional debate over the proposed Federal Marriage Amendment defining marriage as a union between one man and one woman, Frederick Liu and Stephen Macedo observed how the narrative was changing:
Strikingly, senators avoided moral criticisms of homosexual conduct and relationships. Republican senators sought to shift the focus of the debate away from homosexuals and toward children; instead of advancing a morally perfectionist case against gay marriage, they relied on what seemed to be less controversial and more widely acceptable claims about children's welfare.
Macedo and Liu assessed this strategy as “cynical, opportunistic, and inconsistent with...equal respect and fairness.” It was also empirically bankrupt. Consider two senators’ comments (quoted by Macedo and Liu) during floor debate in July 2004. Sen. Orrin Hatch of Utah insisted that the FMA “is not about discrimination. It is not about prejudice. It is about safeguarding the best environment for our children.” Sen. John Cornyn of Texas elaborated on this claim: children raised in same-sex households “are at a higher risk of a host of social ills,” including drug abuse, criminal activity and dropping out of school.
As every major child welfare organization attests, none of these claims can be substantiated by available data. The Child Welfare League of America “affirms that gay, lesbian, and bisexual parents are as well suited to raise children as their heterosexual counterparts.” The American Psychological Association notes that studies have “failed to confirm any...concerns about children of lesbian and gay parents.” The American Academy of Pediatrics agrees:
More than 25 years of research have documented that there is no relationship between parents' sexual orientation and any measure of a child's emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with 1 or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families.
So what exactly is the problem with children growing up with two moms or two dads? Zach Wahls’ speech dismantling the case against homosexual parents two years ago before the Iowa House of Representatives has been viewed 2.7 million times on YouTube. It speaks for itself. It’s no wonder that the claims about child welfare and same-sex marriage have evolved in a baffling direction. Consider the bizarre basis on which New York State’s highest court excluded gays and lesbians from marriage in a 2006 case. Homosexual couples “can become parents by adoption, or by artificial insemination...but they do not become parents as a result of accident or impulse.” By contrast, straight couples have relationships that are “all too often casual or temporary” and therefore need marriage “to create more stability and permanence in the relationships that cause children to be born.” Because they do not conceive and bear children willy nilly, gays and lesbians already have more stable relationships, the Court reasoned; they don’t need the civilizing institution of marriage as much as heterosexual couples do.
This counterintuitive justification for denying homosexuals the right of marriage boggles the mind, as does the argument out of the California Proposition 8 case now headed for the Supreme Court that opening marriage to homosexuals contributes to a “deinstitutionalization” of marriage that is already underway, as seen in rising rates of divorce and out-of-wedlock births. Loosening marriage further by letting gays and lesbians take vows would exacerbate the demise of marriage as we know it, and children across America, those with gay and straight parents alike, would suffer.
As University of California-Davis law professor Courtney Joslin suggests in her recent article, the strange and shifting narrative regarding the well-being of children by opponents of marriage equality may indicate how hollow their case really is. The argument is better interpreted as a disingenuous campaign to turn voters against marriage equality than a sincere critique of same-sex couples raising children. As “a cover for an invidious end,” the child welfare argument is a poorly disguised excuse for discriminating against gays and lesbians.
#3 Same-sex marriage is seen as morally offensive by political majorities
This is where the third type of claim against same-sex marriage arises. It is not a claim that a majority of Americans oppose same-sex marriage, for this is no longer true. Instead, the argument proceeds from the premise that decisions about marriage law should be made by the people, represented by members of Congress and state legislators, rather than by unelected judges. Here is how Lyle Denniston of SCOTUSblog puts it:
A final argument, one that marriage defenders hope might ultimately be persuasive for the Supreme Court, is that the issue of same-sex marriage be left, as much as possible, to be worked out in the democratic process. It is there, they contend, that the people of America can best make a judgment about something so fundamental to their lives.
This approach is a favorite of Justice Antonin Scalia, who recently reaffirmed his position that the people’s moral outrage against an activity is a sufficient basis for banning it, whether the despised activity is homosexual conduct or murder:
If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?...Of course we can. I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality.
This inartful response to a gay Princeton freshman’s question was exactly the point Scalia made in his dissent in Romer v. Evans, a 1996 case in which the Supreme Court nullified a Colorado amendment targeting homosexual rights. But we should keep in mind this was adissent. The position the Court took in Romer and reaffirmed in Lawrence v. Texas, the 2003 anti-sodomy case, is clear, and it is the precedent under which the Court will decide the same-sex marriage cases in June. InRomer, the Court, quoting a 1973 decision, was emphatic:
"[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."
With the popular demise of the natural law argument, the ludicrous claims of the child welfare argument and the constitutional bankruptcy of the “expression of outrage” argument, the case against same-sex marriage is gasping for air. Preserving civil marriage as an exclusive club for heterosexuals — for no other reason than to withhold a benefit from homosexuals — is inconsistent with the equal protection guarantee of the 14th Amendment.
Even Justice Scalia, dissenting vigorously in the 2003 case, predicted this day would come, and that the Lawrencedecision would be the controlling precedent: “This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”
If principle and logic hold, if the Court takes an honest look at the failure of each revision of the case against marriage equality, if swing Justice Anthony Kennedy remains true to his earlier support for homosexual rights, the new popular consensus in favor of same-sex marriage will be joined by a legal recognition of the equal right of gay and lesbian Americans to marry. The stage is set.
What is human dignity? Here's a primer, told through 200 years of great essays, lectures, and novels.
- Human dignity means that each of our lives have an unimpeachable value simply because we are human, and therefore we are deserving of a baseline level of respect.
- That baseline requires more than the absence of violence, discrimination, and authoritarianism. It means giving individuals the freedom to pursue their own happiness and purpose.
- We look at incredible writings from the last 200 years that illustrate the push for human dignity in regards to slavery, equality, communism, free speech and education.
The inherent worth of all human beings<p>Human dignity is the inherent worth of each individual human being. Recognizing human dignity means respecting human beings' special value—value that sets us apart from other animals; value that is intrinsic and cannot be lost.</p> <p>Liberalism—the broad political philosophy that organizes society around liberty, justice, and equality—is rooted in the idea of human dignity. Liberalism assumes each of our lives, plans, and preferences have some unimpeachable value, not because of any objective evaluation or contribution to a greater good, but simply because they belong to a human being. We are human, and therefore deserving of a baseline level of respect. </p> <p>Because so many of us take human dignity for granted—just a fact of our humanness—it's usually only when someone's dignity is ignored or violated that we feel compelled to talk about it. </p> <p>But human dignity means more than the absence of violence, discrimination, and authoritarianism. It means giving individuals the freedom to pursue their own happiness and purpose—a freedom that can be hampered by restrictive social institutions or the tyranny of the majority. The liberal ideal of the good society is not just peaceful but also pluralistic: It is a society in which we respect others' right to think and live differently than we do.</p>
From the 19th century to today<p>With <a href="https://books.google.com/ngrams/graph?year_start=1800&year_end=2019&content=human+dignity&corpus=26&smoothing=3&direct_url=t1%3B%2Chuman%20dignity%3B%2Cc0" target="_blank" rel="noopener noreferrer">Google Books Ngram Viewer</a>, we can chart mentions of human dignity from 1800-2019.</p><img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNDg0ODU0My9vcmlnaW4ucG5nIiwiZXhwaXJlc19hdCI6MTY1MTUwMzE4MX0.bu0D_0uQuyNLyJjfRESNhu7twkJ5nxu8pQtfa1w3hZs/img.png?width=980" id="7ef38" class="rm-shortcode" data-rm-shortcode-id="9974c7bef3812fcb36858f325889e3c6" data-rm-shortcode-name="rebelmouse-image" />
American novelist, writer, playwright, poet, essayist and civil rights activist James Baldwin at his home in Saint-Paul-de-Vence, southern France, on November 6, 1979.
Credit: Ralph Gatti/AFP via Getty Images
The future of dignity<p>Around the world, people are still working toward the full and equal recognition of human dignity. Every year, new speeches and writings help us understand what dignity is—not only what it looks like when dignity is violated but also what it looks like when dignity is honored. In his posthumous essay, Congressman Lewis wrote, "When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war."</p> <p>The more we talk about human dignity, the better we understand it. And the sooner we can make progress toward a shared vision of peace, freedom, and mutual respect for all. </p>
With just a few strategical tweaks, the Nazis could have won one of World War II's most decisive battles.
- The Battle of Britain is widely recognized as one of the most significant battles that occurred during World War II. It marked the first major victory of the Allied forces and shifted the tide of the war.
- Historians, however, have long debated the deciding factor in the British victory and German defeat.
- A new mathematical model took into account numerous alternative tactics that the German's could have made and found that just two tweaks stood between them and victory over Britain.
Two strategic blunders<p>Now, historians and mathematicians from York St. John University have collaborated to produce <a href="http://www-users.york.ac.uk/~nm15/bootstrapBoB%20AAMS.docx" target="_blank">a statistical model (docx download)</a> capable of calculating what the likely outcomes of the Battle of Britain would have been had the circumstances been different. </p><p>Would the German war effort have fared better had they not bombed Britain at all? What if Hitler had begun his bombing campaign earlier, even by just a few weeks? What if they had focused their targets on RAF airfields for the entire course of the battle? Using a statistical technique called weighted bootstrapping, the researchers studied these and other alternatives.</p><p>"The weighted bootstrap technique allowed us to model alternative campaigns in which the Luftwaffe prolongs or contracts the different phases of the battle and varies its targets," said co-author Dr. Jaime Wood in a <a href="https://www.york.ac.uk/news-and-events/news/2020/research/mathematicians-battle-britain-what-if-scenarios/" target="_blank">statement</a>. Based on the different strategic decisions that the German forces could have made, the researchers' model enabled them to predict the likelihood that the events of a given day of fighting would or would not occur.</p><p>"The Luftwaffe would only have been able to make the necessary bases in France available to launch an air attack on Britain in June at the earliest, so our alternative campaign brings forward the air campaign by three weeks," continued Wood. "We tested the impact of this and the other counterfactuals by varying the probabilities with which we choose individual days."</p><p>Ultimately, two strategic tweaks shifted the odds significantly towards the Germans' favor. Had the German forces started their campaign earlier in the year and had they consistently targeted RAF airfields, an Allied victory would have been extremely unlikely.</p><p>Say the odds of a British victory in the real-world Battle of Britain stood at 50-50 (there's no real way of knowing what the actual odds are, so we'll just have to select an arbitrary figure). If this were the case, changing the start date of the campaign and focusing only on airfields would have reduced British chances at victory to just 10 percent. Even if a British victory stood at 98 percent, these changes would have cut them down to just 34 percent.</p>
A tool for understanding history<p>This technique, said co-author Niall Mackay, "demonstrates just how finely-balanced the outcomes of some of the biggest moments of history were. Even when we use the actual days' events of the battle, make a small change of timing or emphasis to the arrangement of those days and things might have turned out very differently."</p><p>The researchers also claimed that their technique could be applied to other uncertain historical events. "Weighted bootstrapping can provide a natural and intuitive tool for historians to investigate unrealized possibilities, informing historical controversies and debates," said Mackay.</p><p>Using this technique, researchers can evaluate other what-ifs and gain insight into how differently influential events could have turned out if only the slightest things had changed. For now, at least, we can all be thankful that Hitler underestimated Britain's grit.</p>
A new study shows our planet is much closer to the supermassive black hole at the galaxy's center than previously estimated.
Arrows on this map show position and velocity data for the 224 objects utilized to model the Milky Way Galaxy. The solid black lines point to the positions of the spiral arms of the Galaxy. Colors reflect groups of objects that are part of the same arm, while the background is a simulation image.
Apple sold its first iPod in 2001, and six years later it introduced the iPhone, which ushered in a new era of personal technology.