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Today is
"A word to the wise ain't necessary --
it's the stupid ones that need the advice."
-Bill Cosby
posted by Kate Marie | 11:10 PM | Permalink
|
34 comments
34 Comments:
Kate Marie,
Unsurprisingly, I find Velleman's argument is very weak. It presumes 1)that the chief or only purpose of marriage for same-sex couples is joint parenthood; 2)that same-sex marriage is the only circumstances under which a child's "right" to know who his or her biological parent is could be abridged.
Whatever the UN charter might or might not say, it is clearly in everyone's best interests (including the children themselves) to allow parents to forfeit their rights and status in return for a guarantee of anonymity. To refuse to do so would lead to an increase in abortion, abandonment, and infanticide. If it is permissible in those instances, why should it be banned in cases of same-sex couple surrogacy? Because their desire for a child is somehow "indecent?" Is the prospect of bringing a child into the world that is wanted and loved not enough of a social good to allow the protection of a surrogate's anonymity?
Moreover, the situation of same-sex couples and the array of family options from which they must chose is no different from that of heterosexual couples who suffer from infertility. So why do same-sex couples pose a threat to the parent-child relationship that infertile heterosexual couples do not? Vellen's whole line of reasoning is based on a pre-existing bias- that same-sex couples are searching for a kind of fulfillment to which only heterosexual couples are entitled.
Madman,
There's a blog where commenters for Left2Right can post their comments. I think you should take these issues up with Velleman there. (By the way, I don't think Velleman assumes either of the premises you mention in your comments, but you could ask him.)
"Whatever the UN charter might or might not say, it is clearly in everyone's best interests (including the children themselves) to allow parents to forfeit their rights and status in return for a guarantee of anonymity. To refuse to do so would lead to an increase in abortion, abandonment, and infanticide."
-- How would the requirement that sperm donors not be anonymous lead to the consequences you describe?
This comment has been removed by a blog administrator.
One last thing. You say:
"Vellen's whole line of reasoning is based on a pre-existing bias- that same-sex couples are searching for a kind of fulfillment to which only heterosexual couples are entitled."
-- Silly me. I thought he was talking about marriage and child-rearing, not about "fulfillment" and who is entitled to it. Why always the jump to an assumption of bias against homosexuals?
Maybe I should try this some time: "Your whole line of reasoning is based on a pre-existing bias- that people in polygamous relationships are searching for a kind of fulfillment to which only heterosexual and homosexual couples are entitled."
Kate Marie,
"How would the requirement that sperm donors not be anonymous lead to the consequences you describe?"
You miss my point. Velleman argues that same-sex marriage should not be legalized because the aspirations of same-sex couples to parenthood fly in the face of a child's right to know their biological parents. If this right was so sacrosanct that it could justify denying same-sex couples the right to marry then it would have to be applied across the board- to, say, single unwed mothers contemplating the choice between adoption or abortion. If we allow for the pragmatic necessity of a parent giving up all rights and status in this latter case, is it fair to selectively disallow such an action in the case of same-sex surrogacy?
The case you mention illustrates my point very clearly. Sure, there is no pressing ethical reason to prevent sperm-donors from being compelled to reveal their identity, but if you do it will put a big crimp in the sperm supply, raising a hue and cry among infertile couples, hetero and same-sex alike. I wouldn't hold my breath waiting for it to happen very soon.
As for my argument that Vellen's argument is built on bias, I don't see how his logical failing is explicable elsewise. How can he possibly contend that same-sex couples pose a greater threat to the parent-child relationship than infertile hetero couples, unless he is willing to argue that these latter couples may also not marry?
As for your argument about polygamy, it falls flat unless all participants in the relationship are of the same sex. If there are at least one person from each sex they can go ahead and have children without any problem, and never have to worry about concealing the identity of the biological parents from the child.
PS- I originally intended to give Velleman a piece of my mind but couldn't figure out how to post a comment. Are you sure there is a way to do it? The blog you refer to seems to be a list of other weblogs that have referenced Left2Right.
Yes, go to the Left2Right main blog and scroll down to the post that says "Housekeeping." There you'll find a link to the blog where you can post comments.
This comment has been removed by a blog administrator.
You're not -- or not wholly, anyway -- understanding my polygamy example.
Here's the crux of Velleman's position, I think:
"My worry is that a purely affectional conception of marriage will tend to favor a purely affectional conception of parenthood."
When you talk about "fulfillment" denied to homosexuals you are predicating your notion of marriage on the "affectional" model that Velleman rejects. It seems odd to me to base your description of Velleman's "bias" on a model of marriage which he rejects. If you want to argue that Velleman's rejection of the "affectional" conception of marriage is itself evidence of some anti-homosexual bias, go ahead, but then I would argue that your "affectional" model of marriage is evidence of anti-polygamy bias, unless you do in fact support marriage rights for polygamous relationships.
Kate Marie,
No, you are not understanding both a)what I meant by fulfillment (the fulfillment of having and raising one's own biological children); and b) why your polygamy example is not relevant to Velleman's argument. Nothing about polygamous marriage requires a "purely affectional concept of marriage." Polygamy was practiced for centuries and still is in some parts of the world as part of a very "biological" marriage program. Chinese emperors had hundreds of wives- it was the best way to insure that they had male progeny, and it didn't prevent any of his offspring from having one mother and one father. Even if you begin to postulate multiple men bonded to multiple women that does not necessitate an "affectional concept" of either marriage or parenthood. You can trot out the polygamy canard to argue against same-sex marriage on other fronts, but it simply doesn't jibe with Velleman's argument.
The problem with Velleman's thesis that affectional marriage will lead to affectional parenthood is that we already have a purely affectional model of civil marriage. Two people do not need to be fertile to marry nor do they need to have children to remain married. If a man from a childless marriage father's a child upon a woman other than his wife it doesn't make him any less married to the latter or more married to the former.
Moreover, as I keep repeating, Velleman's argument falls to pieces over the case of an infertile heterosexual married couple. Why is their marriage any less "affectual" than that of a same-sex couple, and why aren't the steps they might take to conceive their own children any more injurious to the "concept of parenthood" than those taken by a same-sex couple. This is where my discussion of "bias" and "fulfillment" comes in- Velleman's unspoken assumption (again, I can't make sense of his assertions otherwise) seems to be that a same-sex couple's desire to have biological offspring of their own is somehow less natural and/or more selfish than that of infertile heterosexual couples.
Now, Velleman may be arguing that all anonymous donorship, surrogacy, and adoption should be done away with, and that when that happens same-sex marriage will be undermined (note that it would simultaneously end the hopes of many infertile hetero couples of having their own children and would make it even harder to adopt children). As this is never going to happen, however (and is frankly a really bad idea in the first place, if that is really what he is proposing), his reasoning provides no compelling argument against same-sex marriage.
Velleman *does* oppose donorship, anonymous or otherwise (as his post makes clear). I'm not sure what his position on surrogacy is, and it seems he supports adoption (but perhaps not anonymous adoption). You might want to read his paper on family history; it's very interesting.
The fullfillment of "having and raising one's own children" is *not* denied to same-sex couples (nor to single mothers and fathers, nor to polygamous relationships, for that matter); the fulfillment of marriage as the context of such child-rearing is denied. I suspect that Velleman would argue that, despite the existence of infertile couples and those who choose not to procreate, marriage should be restricted to heterosexual unions as a category, because it is the only category of union which naturally produces children.
I'm not quite sure what you mean when you say we already have a *purely* affectional model of marriage, but I don't think the presence of infertile couples or other "deviant" relationships (please don't jump on the phrase -- I mean something specific and non-derogatory) *proves* that marriage is purely affectional. If one believes that there's a normative principle underlying marriage, the presence of deviations from that norm does not in and of itself alter the principle. But I can't believe that you think marriage is *purely* affectional -- that is, that there's no normative principle involved.
Kate Marie,
I went back and re-read Velleman's argument prior to posting on L2R's response blog. Yes, he does oppose anonymous donorship and adoption, but his attempt to derive an argument against same-sex marriage from the case he makes against anonymous donorship and adoption fails.
You use "affectional" and "normative" as if they were antonyms, but they are not. Velleman does not mean to contrast affectional models of marriage and parenthood with normative ones (indeed, one can build models of both that are equally normative and affectional), but with *biological* ones. Affectional marriage and parenthood are rooted in the feelings of participants while biological marriage and parenthood center around procreational ties.
My point in declaring that civil marriage is wholly affectional in practice is that under the current structure of the law the "procreational" definition of marriage has been almost wholly stripped away in most of the United States. Until very recently, for example, a wife could not charge her husband with rape because sex was counted among her "marital duties." Now the taking of marital vows may no longer provide a priori proof of one's willingness to procreate. Inversely, being born out of wedlock no longer carries with it the freight of legal sanctions that once fell upon the "illegitimate," doing away with a whole array of controls intrinsic to a "biological" model of civil marriage.
So, being that procreation no longer controls the legal constitution of civil marriage in our society, it is very difficult to see how same-sex marriage will make the institution any more affectional than it already is. Moreover, Velleman's argument against same-sex marriage hinges finally on the damage it will do to the righs of children-
"Like some donor offspring, I am opposed not just to anonymity in donor conception but to the practice of donor conception itself.....My worry is that a purely affectional conception of marriage will tend to favor a purely affectional conception of parenthood. And I think that denying the importance of biological parenthood leads us to violate fundamental rights of children."
The basic problem with this line of reasoning is that same-sex marriage does no more violence to the biological concept of either marriage or parenthood than the case of infertile heterosexual couples. Infertile hetero couples have as avid an interest in the promotion of donor conception as same-sex couples, and the absolute numbers of people participating in this practice probably balances out on either side. An infertile hetero couple's move to donor conception is rooted in a commitment to AFFECTIONAL marriage (and, by extension, affectional parenthood)- though one of them might become *biological* parents with another partner both remain committed to joint parenthood with THE unique person that they love. Banning same-sex marriage will not remove this constituency militating against the principles Velleman holds so dear, so unless he would extend his marriage ban to include infertile hetero couples he simply cannot argue for the necessity of banning same-sex marriage ON THIS BASIS.
I didn't suggest that affectional and normative concepts of marriage are mutually exclusive, but that a *purely* affectional concept of marriage is (unless one wants to define the normative principle there as being "whatever any couple, or group, of married people want"). Yes, Velleman seems to be arguing for a biological/procreative definition of marriage -- but he posits *that* as his normative principle.
I would argue that the existence of infertile couples does less harm to the normative biological/procreative principle of marriage, because they are a subset of a category which can naturally procreate (and couples don't know ahead of time -- without, sometimes, fairly exhaustive testing, and even then, often without absolute certainty --that they are infertle. Same-sex couples do.
Velleman's argument doesn't strike me, as it seems to strike you, as a purely pragmatic one; that is, that he merely wants to "remove the constituency militating against the principles he holds so dear." He seems to be trying to come up with a definition of marriage that is logically in line with "the principles he holds so dear." But that's what we all do, in the end, isn't it? Or do you think *any* two people (or groups of people) should be able to marry?
Kate Marie,
"I didn't suggest that affectional and normative concepts of marriage are mutually exclusive, but that a *purely* affectional concept of marriage is [Madman's note: is what?] (unless one wants to define the normative principle there as being 'whatever any couple, or group, of married people want'). Yes, Velleman seems to be arguing for a biological/procreative definition of marriage -- but he posits *that* as his normative principle."
You are making an argument that Velleman doesn't, and with which I'm fairly certain he would not agree. There is no reason why a "purely affectional" concept of marriage necessarily precludes adhering to a normative principle. Many of the most fundamental, non-negotiable, distinctive, and innovative norms of modern European and American marriage are purely affectional. The best example is the one embodied by the fabled words "I do"- in order to be binding a modern American marriage must be entered into by both parties willingly. This was not true in most societies throughout most of human history, but is so central to our normative conception of marriage today that it now completely trumps any of the biological imperatives that once constituted the matrimonial state. It is of no consequence today if a couple can be proven to have produced a child together, they may not be compelled to marry. This is again very different from the state of most societies throughout most of human history, where two people could face grave sanctions if they refused to marry in the face of childbirth.
Velleman knows very well that modern matrimony, even between heterosexuals, is almost wholly affectional. He is not trying to "come up with a definition of marriage that is logically in line with 'the principles he holds so dear,'" he is attempting to defend the last, arbitrary biological determinants of marriage against the tide of modernity and ethical enlightenment. There is only one purely biological* criteria that a couple must meet, they must be of different sexes. Velleman is tendentiously attempting to insist that conserving this very arbitrary constituent will somehow (through a series of nth-degree removes) help safeguard the rights of certain children, but this is demonstrably untrue (for all the reasons I've listed above). Yielding up this last, arbitrary, anemic, and frankly very porous (surgical sex change is now a modern possibility, after all) parameter will make marriage "purely affectional" but no less normative than it ever was. Conserving this rule violates the deeper norms that our society has come to value more fundamentally in matrimony, thus lifting the ban on same-sex marriage will make marriage a much more just and integral institution.
*I know what you are thinkging- incest! But the ban against incestual marriage is not purely biological, it is partly affectional. As a society we (rightly, I think it may be argued) view romantic love between blood relatives as psychologically detrimental. You might argue that the ban on incest is instituted out of concern for the health of any potential offspring, but this is manifestly untrue. With the dissolution of the legal sanctions against "illegitimacy" the state has effectively lost its power to influence who has offspring under what conditions- preventing blood relatives from marrying in no way precludes them from having children.
Perhaps we're operating under different definitions of the word "affectional." What's yours?
In a purely affectional model of marriage, why should the potential "pyschological harm" be a factor in incestuous marriages when we presume we are dealing with two consenting adults who have made a "purely affectional decision"? Are you suggesting that we should allow, say, an adult brother and sister to marry? And I ask you again -- what is your objection to polygamy? Why is number less arbitrary than sex?
Finally, as to "defending the last, arbitrary biological determinants of marriage against the tide of modernity and ethical enlightenment," you're kind of jumping the gun in terms of the tide of modernity and "ethical enlightenment," aren't you? It seems that whenever the issue has been put to a vote, same-sex marriage has lost. So what, exactly, do you mean by the "tide of modernity and ethical enlightenment"? I would argue -- in line with Jennifer Roback Morse's recent article in Policy Review on marriage and the limits of contract -- that marriage is an organic social instituion (not one that was invented or imposed by the state); as such, it seems, society as a whole must be willing to accept "the tide of modernity and ethical enlightenment" in order to actually demonstrate that the "tide of modernity," yada yada yada, is flowing in the direction you imply.
In other words, I am taking "affectional" to mean characterized by emotion or feeling.
A purely affectional model of marriage would thus be either:
a) A model whereby any two consenting persons or group of persons could enter into a marriage based on their emotions --based on their feelings about what constitutes marriage.
b) A model whereby the limits (if any) of the marriage contract are defined by the "affectional orientation" of society as a whole -- by what the collective "feels" is correct.
But what am I missing? What are the other ways of defining a "purely affectional" model of marriage? Option A, in my opinion, can only be normative in the most trivial sense (rather like the Bart Simpson "be like the boy," "I do what I feel" sense of normative). Option B, I suppose, could be normative, but it seems to me that you aren't willing to accept the norms that appear to be currently in favor.
Kate Marie,
I don't know, I think I've shown very clearly how one of the central norms of modern marriage is purely affectional, I don't understand what you're not picking up on.
Moreover, you are now are off in territory very alien to Velleman and his concerns. I'm happy to discuss the whole array of questions surrounding the family rights of same-sex couples, but I think I've demonstrated pretty clearly that Velleman is counterposing "affectional" and "biological" concepts of marriage, NOT "affectional" and "normative" concepts of marriage.
I've given you my sense of "affectional marriage" above- one rooted in the feelings of the participants. You persistently conflate "affectional marriage" with "subjective marriage," but not only is this inaccurate, Velleman clearly does not do likewise. His whole argument centers around the danger of a purely affectional model of parenthood- how would either of your definitions of "affectional" help make sense of Velleman's argument with regard to parenthood?
You keep resisting a fact which seems obvious to me- that an institution rooted in the feelings of the participants (as modern marriage almost wholly is) can still be built upon (indeed, it must be, in order to be socially operative at all) external, observable, and sanctionable instantiations of those feelings. In "affectional parenthood" those external manifestations are the care, protection, and nurturing that express correct parental concern and which aim at producing a sense of security and well-being in the child (in other words, the advocate of affectional parenthood holds that a person's true parent is the one who reared, not the one who merely conceived him or her). In affectional marriage those outward signs include (but are not limited to) the words "I do" that express the willingness of both partners to embark upon the marital bond and the sexual fidelity that is held as a hallmark of mutual respect, trust, and love. In neither of these cases are the institutions reducible to "whatever the participants think it is" or "whatever society says it is."
Affectional marriage is an exclusive bond of mutual love and trust between two people, the attributes and outward signs of which can be enumerated and objectively sanctioned. Incest is excluded from that bond because the love between close kin is incommensurate with the love between spouses. Polygamy is excluded from that bond because it is diluted and attenuated by inclusion of more than two people.
As for your last observation that marriage is an "organic social institution," I don't know how anything I have said contradicts that fact. "Organic institutions" evolve, and marriage as an institution has clearly been evolving very rapidly and very profoundly in the last few centuries. Where for most of human history marriage was a relationship between master and subordinate and was an institution in which participation was compulsory for one or both members, marriage has evolved into an institution rooted in equality and individual personal autonomy. That is the "tide of modernity and enlightenment" to which I referred, and is the evidence upon which I have every confidence that the next "organic" step in the evolution of marriage as an institution will be a general lifting of the ban on same-sex marriage, because (whether the majority realizes yet it or not) that ban violates the norms of equality and personal autonomy upon which the current institution of marriage is built. Civil marriage as it is restricted now perpetuates paradox and injustice, and it is just that type of dissonance that impels the evolution of organic institutions in good time.
"I've demonstrated pretty clearly that Velleman is counterposing 'affectional' and 'biological' concepts of marriage, NOT 'affectional' and 'normative' concepts of marriage."
-- I don't think so. If I accept that an affectional concept of marriage may also be normative, why is a biological concept of marriage not also able to be normative?
"Affectional marriage is an exclusive bond of mutual love and trust between two people, the attributes and outward signs of which can be enumerated and objectively sanctioned. Incest is excluded from that bond because the love between close kin is incommensurate with the love between spouses. Polygamy is excluded from that bond because it is diluted and attenuated by inclusion of more than two people."
-- But there are all sorts of marriages in which that bond is already diluted and attenuated ("open" marriages, marriages of convenience, marriages in which one partner marries for financial benefit). Would you exlude those couples from marrying? Then why exclude polygamous couples, especially since, though I agree with you about polygamy, the attenuation of the bond is not something that can really be proven, and will likely be vehemently denied by those who are, in fact, in polygamous relationships. How do you know that your idea of an attenuated bond isn't just a residual prejudice that the "tide of enlightenment" hasn't quite caught up with?
"That is the "tide of modernity and enlightenment" to which I referred, and is the evidence upon which I have every confidence that the next "organic" step in the evolution of marriage as an institution will be a general lifting of the ban on same-sex marriage, because (whether the majority realizes yet it or not) that ban violates the norms of equality and personal autonomy upon which the current institution of marriage is built. Civil marriage as it is restricted now perpetuates paradox and injustice, and it is just that type of dissonance that impels the evolution of organic institutions in good time."
-- All well and good, and I actually pretty much agree that the next "organic" step might well be the lifting of the ban -- but that step can only be "organic" if it is reached by society in general and not imposed by a court.
And by the way, if, as you say, "in neither of these cases [affectional parenthood or affectional marriage] are the institutions reducible to 'whatever the participants think it is' or 'whatever society says it is'" then who, exactly, *does* decide what the "external, observable, and sanctionable instantiations of those feelings" are? If saying "I do" to marital fidelity is an observable instantiation of that feeling, WHY is it so? Where does the notion of fidelity as a normative principle of marriage arise, and why should it remain?
Kate Marie,
"If I accept that an affectional concept of marriage may also be normative, why is a biological concept of marriage not also able to be normative?"
Biological concepts of marriage are certainly normative (it is difficult to imagine how they could be otherwise), but it is not their *normative* status that Velleman is counterposing to the qualities of affectional marriage. Velleman is not arguing (as you were insisting earlier) that biological concepts of marriage are *more normative* than affectional concepts of marriage. Rather, he perceives that the norms intrinsic to affectional models of marriage and parenthood are in tension with the rights of children, thus he would have us guard against having either marriage or parenthood slide too far toward the "affectional" side of the spectrum. I have been arguing, contra Velleman, that a)lifting the ban on same-sex marriage will not make marriage slide significantly further toward the "affectional" side than it already has; b)the conservation of the ban on same-sex marriage will not safeguard children's rights any better than a ban on the marriage of infertile hetero couples would, thus it is unfair and arbitrary to continue this injustice on that basis.
"[T]here are all sorts of marriages in which that bond is already diluted and attenuated ("open" marriages, marriages of convenience, marriages in which one partner marries for financial benefit). Would you exlude those couples from marrying? Then why exclude polygamous couples, especially since, though I agree with you about polygamy, the attenuation of the bond is not something that can really be proven, and will likely be vehemently denied by those who are, in fact, in polygamous relationships."
Any institution is open to abuse and includes loopholes for those who would adhere to its letter and violate its spirit. The best any society can hope for is to construct its institutions so as to minimize the potential for abuse without compromising principles of basic fairness. As for the case of polygamy, I don't think that principles of basic fairness are compromised in that instance. However secure and benefitial those involved in a polygamous relationship might feel their bond is, they cannot argue that fairness requires society to give their bond the same sanction as marriage. The power of marriage to promote monogamy/monoandry is of demonstrable benefit to society and would be impaired by such a move, harming all in the community equally. Moreover, marriage has economic and social aspects that are not accounted for in Velleman's affectional-biological analysis. However intangible the affectional aspects of the bilateral marriage bond might be (and I don't feel they are all that intangible) the intensity of the economic and social bond implicit in bilateral matrimony would be quantifiably attenuated by its expansion to three or more people.
"And by the way, if, as you say, "in neither of these cases [affectional parenthood or affectional marriage] are the institutions reducible to 'whatever the participants think it is' or 'whatever society says it is'" then who, exactly, *does* decide what the "external, observable, and sanctionable instantiations of those feelings" are? If saying "I do" to marital fidelity is an observable instantiation of that feeling, WHY is it so?"
Accepting that marriage is an "organic social institution" makes the observation that marital norms arise and evolve through a complex process of negotiation within society at large tautological. This fact is what makes marriage as an institution "social." But this is different than conceeding that marriage is "whatever society says it is," if this were so marriage as an institution would hardly be "organic." The organic quality of an institution comes from the deliberative search for grounding principles that animates the social negotiation whereby it is established or amended.
You assert that the organic integrity of marriage may only be preserved if it is amended by the legislature rather than the courts. This of course begs the question of what makes an "organic institution" "organic." Is it the institutional process by which it is established or changed, or is it the underlying principles upon which it is based? For the sake of our nation and the smooth operation of its institutions I would like to see the ban on same-sex marriage lifted by the legislative branch (indeed, my fondest dream is to see our constitution amended to universally safeguard the family rights of same-sex couples). But to my mind the right of same-sex couples to marry is as natural and inalienable as the right of women to vote or the right of people regardless of race to be free. If the right of women to vote were still denied and could be restored by judicial fiat would you object? Was the Emancipation Proclamation inorganic because it originated in the executive rather than the legislative branch of government?
"However secure and benefitial those involved in a polygamous relationship might feel their bond is, they cannot argue that fairness requires society to give their bond the same sanction as marriage."
-- But of course they can, Madman. You might disagree with the position, but it can be argued, and it can -- in my opinion -- be argued effectively.
"Accepting that marriage is an "organic social institution" makes the observation that marital norms arise and evolve through a complex process of negotiation within society at large tautological. This fact is what makes marriage as an institution "social." But this is different than conceeding that marriage is "whatever society says it is," if this were so marriage as an institution would hardly be "organic." The organic quality of an institution comes from the deliberative search for grounding principles that animates the social negotiation whereby it is established or amended."
-- Is that an answer to the question, or not? What, exactly, is the "deliberative search for grounding principles that animates the social negotiation whereby it is established or amended"? I'm not being snide -- I'm just not really sure what you mean by this. I would argue that the "deliberative search for grounding principles" occurs only after marriage has been established as an organic civil institution, and that it is established in practice: who is married, and who is recognized as being married? And yes, that practice and the process of recognizing that practice are changing (more and more people are beginning to recognize gay couples as "married"). But I don't see how the "deliberative search for grounding principles" that you describe can happen except by general social consensus.
I don't know whether I believe that marriage in general is a natural and inalienable right.
As to the questions about women's suffrage and the Emancipation Proclamation -- I would certainly not object to a court imposing a right to vote for women, but I hope I would be intellectually honest enough to admit that it didn't happen by an organic process, and that my satisfaction with the outcome wasn't based on its adherence to "organic" principles. As for the Emancipation Proclamation, ... I'd say it was purchased by the blood of hundreds of thousands of slaves and Union soldiers, and that it *was* therefore organic (organic processes can sometimes be sudden and violent).
Kate Marie,
Hmmm....There is a lot to sort through here. I must admit I'm having difficulty distinguishing between what you call "general social consensus" and your (B) definition of "affectional marriage" a few posts upthread. How does your "general social consensus" provide a normative standard other than "whatever society wants?"
Institutions are created through social negotiation, not social consensus. "Consensus" is a static point that no society ever truly reaches, negotiation is a dynamic process in which any cultural, social, or political institution is constantly implicated. Any institution, especially one as ecumenical and fundamental as marriage, is constantly being challenged, deliberated, affirmed or amended. Each new instance of marriage provides a new context in which the negotiation proceeds, even if the uncontroversial result of that marriage is to affirm the status quo. All of the marriages and all of the verbal and written exchanges over the content and significance of particular marriages or matrimony in general that take place in a given society constitute the "deliberative search for grounding principles" that constantly produce and reproduce, shape and reshape the institution of marriage for society at large. The "grounding principles" that emerge from this negotiation and the manner in which they are selectively applied in practice is as much a product of the cultural, economic, and institutional distribution of power within a society as any genuine "consensus" measured in per capita terms.
For example- Ancient Chinese Confucian tradition holds that a union between two people of the same surname is incestuous, one can marry one's first cousin on one's mother's side but not a person with whom one has no blood relation who has the same surname. In South Korea this principle was encoded in law (and may well still be- I don't know whether the law has been changed), which created a great deal of difficulty in a country where 80% of the populace is distributed among only 3 or 4 surnames. Tens of thousands of Koreans who fell in love with people of the same surname were unable to acquire state sanction for their union. Periodically some faction within the Korean government would move to change the law (which was all but universally unpopular), at which point the classically trained Confucian scholars of Korea (a tiny minority who enjoy immense social prestige) would threaten suicide en masse in protest of what they perceived to be an abomination, thus derailing the attempted reform.
This example demonstrates that 1)the "organic" processes by which an institution such as marriage is negotiated in society may often have little to do with "general social consensus;" 2)though these same "organic" processes produce norms, tney cannot be relied upon to spontaneously produce norms that are just or right- they have no more moral authority than the "guiding principles" to which they give rise.
Take your example of the Civil War and Emancipation. If the Confederacy had won the war and slavery had persisted for another 50 or 100 years or up until today, would that process have been any less "organic" than what actually transpired? Would its being "organic" make it any more just or right?
Whether the lifting of the ban on same-sex marriage transpires in the courts or in the legislature has little bearing on how "organic" that process is to our society. Moreover, how it transpires has only tangential bearing on whether it is right or just.
Madman, when I say "social consensus" I don't mean anything much different from "whatever society says it is" -- which is, in my opinion, less confusing than the definintion of complex social negotiations and deliberative processes which you have offered. You claimed that marriage involved "external, observable, and sanctionable instantiations of those feelings [the feelings of the parties to the marriage contract]." Leaving aside some confusion about how an instantiation of "feelings" occurs (perhaps I'm being too literal in my understanding of instantiation), your description of how and why any particular marriage is an instantiation is rather vague. What is the object template or type that any particular marriage is an instantiation of? Your defense of the deliberative process of social negotioation is eloquent, but I fail to see how it amounts to anything more than an assertion that *your* particular understanding of the normative/grounding principles of marriage is the correct one; in other words, your argument seems to be that the deliberative process by which marriage becomes marriage in a society is complex and mysterious, but you happen to know that it's all leading in the direction you think best. It may be, but I'm not entirely convinced by your proof.
Kate Marie,
We've wandered all over the map at this point. This whole megillah started because you found Velleman's take on the same-sex marriage debate "interesting." Velleman was not arguing against same-sex marriage on the basis of "general consensus," he was attempting to demonstrate that lifting the ban on same-sex marriage would distort or weaken a normative principle that the conservation of the ban would preserve. I feel fairly confident in venturing to guess (given the care and effort with which he constructed what was ultimately a failed argument) that, whatever he may feel about same-sex marriage, Velleman would rest content with maintaining the ban on the premise of "general social consensus."
I also think that he would agree with me that "general social consensus" generates no normative principle worthy of inspection or debate. To the extent that normative principles structure the institution of marriage today, they are generated by the complex process of social negotiation I described.
Please note- I am not arguing that the PROCESS I described is itself in any way normative. I only meant to argue was that what made such a process (and the institutions which grow out of it) "organic" is its capacity to generate normative principles for inspection and debate, and that without such a process being operative marriage wouldn't merit being called "an organic social institution."
In other words, it will never be valid to say that the same-sex ban (or any aspect of marriage) should be conserved "because that is what the majority dictates," as this is never how marriage or any other organic social institution has been maintained.
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1)But, Madman, I'm not really arguing that the normative principle is *generated* by social consensus, but that social consensus is *at least* as good a way of determining what principle has been generated as the courts. What, exactly, are you proposing as the mechanism by which the normative principle that has been generated by these complex and mysterious social negotiations is identified and defined? You suggest that *some* normative principle exists, but you don't seem willing to tell me how that principle should be determined.
2) I still think Velleman's argument is interesting. If one accepts both the biological principle and the restrictions he would place on donorship and anonymous adoptions, it makes sense -- in my opinion -- to make categorical restrictions to marriage based on sex rather than on fertility. You disagree, but you haven't conclusively proven Velleman's position ultimately fails or that his line-drawing makes less sense than yours.
Kate Marie,
I'm not even going to address your #2, as that would feel too much like chasing my own tail. I've pointed to all of the places where Velleman's argument collapses under the weight of contradiction, if you want to continue to find it "interesting" that's your prerogative.
Still, it is something of a paradox that you would defend Velleman on the one hand and continue to plead "general consensus" on the other. Do you think Velleman's views reflect some general consensus? If we gave Velleman's post out to the whole nation and held a plebescite, would it produce a meaningful result?
My point is that Velleman's arguments and any influence they might have on shaping the institution of marriage are much more exemplary of what I describe as the "social negotiation" whereby marriage is established and maintained than your imagined "general consensus." As a philosopher Velleman doesn't hold that marriage may conform to whatever shape society at large sets for it, or at least he does not act as if that is what he has to contribute to the situation. Velleman argues as if the normative parameters of marriage may be reasoned out on the basis of abstract notions of justice and the common good. In this respect (and few others) I heartily agree with him. Whatever the state of marriage is today, and however "organic" the processes by which it got that way, that doesn't make it right a priori. If as thinking individuals we can demonstrate that the ban on same-sex marriage is unjust, unfair, and harmful to the common good then no amount of "general consensus" will make it otherwise.
Perhaps you might say, "there is no way to definitively prove what you propose." If that were so, why would you even entertain arguments like Velleman's to the contrary? Are you a philosophical relativist? You seem to be clinging to the argument that as "an organic social institution" marriage is not subject to abstract ethical criticsm. Would that be true in the case of another "organic social institution" such as slavery? Or would it even be true of marriage in some past era or society where marriage gave a man the right to beat his wife or expose his unwanted children to die? If those forms of marriage, which evolved as "organically" as our modern form of matrimony, could be deemed unjust or inhumane through abstract ethical analysis why is our current institution above such criticism?
You describe the "social negotiation" I described as mysterious, but it is not mysterious at all. It is going on right now, in the exchange you and I are having over the internet. It is carried on in private conversations, in the print and broadcast media, in legislative debates, and yes, in the courts. This proces of debate and deliberation is the same one that transformed marriage into the institution grounded in equality and personal autonomy it is today, and in the end I predict it will lift the ban on same-sex marriage which is so antithetical to the liberal principles on which our community is founded.
You worry that this act will finally be carried out by the courts. This prospect distresses me for the friction it will cause within our already harried state institutions, but it does not arouse my ultimate opposition. Having the ban lifted by the courts would make the change no less "organic" to our society (if you object to the authority the courts have in our society you have to take your complaint to the Founders). You seem to think that there is something special about the institution of marriage that would make this change wrong if imposed by the courts. But many of the changes to modern marriage were enacted by court precedent (the lifting of the ban on charges of marital rape, for example). If it were still the case that a husband was empowered by matrimony to beat his wife and this was still a point of "general consensus" would you insist that the courts would be wrong to change that?
You can (attempt to) argue on other grounds that same-sex marriage is wrong in principle (as Velleman does), but you can't just shout "general consensus" and call "game over."
Who, pray tell, is shouting "general consensus" and calling game over? You've expended a lot of effort and verbiage in your past couple of comments and yet you still seem unable to answer my questions and umwilling to understand my point, which is that the "deliberative process" you praise (conversations like the one we're having, etc.) have, finally, to be expressed in public institutions and law -- that is, if the marriage vows are an "external, observable, sanctionable instantiation" of *anything*. As I said in my previous comment, social consensus is *at least* as good a way as the courts to determine the normative principles that will be expressed in law.
"As a philosopher Velleman doesn't hold that marriage may conform to whatever shape society at large sets for it, or at least he does not act as if that is what he has to contribute to the situation. Velleman argues as if the normative parameters of marriage may be reasoned out on the basis of abstract notions of justice and the common good. In this respect (and few others) I heartily agree with him."
-- Where have I suggested that I'm opposed to reasoning things out based on abstract notions of justice and the common good? You seem to be arguing that once you and Velleman and the philosopher-kings of the world reason it out, we'll have our newly minted and transformed concept of marriage ready made for codification. But we don't live in Plato's Republic. My question is about who, ultimately, will be the arbiter of that debate; it seems to me that there are only two possible choices -- the courts or the "people" (or "the people" as represented by democratically elected legislatures). In this instance -- and especially since, in my opinion, constitutional rights are not being violated -- I prefer "the people." And to say that doesn't mean that I am implicated in every instance where the courts proved more "enlightened" than the people, unless *your* position is implicated in every terrible decision of the courts, or do you think there haven't been any?
"If as thinking individuals we can demonstrate that the ban on same-sex marriage is unjust, unfair, and harmful to the common good then no amount of 'general consensus' will make it otherwise."
-- Who decides that you've made your case? God? Larry Summers? The New York Times? To whom is the case being demonstrated? And I wasn't aware that believing that asbtract notions of justice and the common good can't, ultimately, be proven makes me a philosophical, or any other kind, of relativist. Is that how philosophical relativism is defined -- as the belief that moral/philosophical propositions are ultimately *unprovable*? I guess I am a philosophical relativist then . . . but I would like to ask you to provide me with an instance where any concept of justice or the common good has been definitively proven by any philosopher.
Kate Marie,
"As I said in my previous comment, social consensus is *at least* as good a way as the courts to determine the normative principles that will be expressed in law."
I guess I just don't understand what your concern is here. Yes, "social consensus" and "the courts" are equally "good" to the ends you describe, in that either may ultimately be right or wrong. The courts upheld slavery for decades, social consensus sanctioned all manner of oppression against women and minorities. But if lifting the ban on same-sex marriage is right (which it is) then no amount of social consensus or degree of judicial activism can make it wrong, and if the courts lift the ban well goody for the courts.
"In this instance -- and especially since, in my opinion, constitutional rights are not being violated -- I prefer 'the people.'"
We just keep talking past each other, god pity anyone outside the two of us who is reading this. Prefer the people all you like, that's not the issue. Velleman certainly refuses to prefer the people, his concern is whether there is some logical principle on which the ban against same-sex marriage may be defended. He attempted to find one and failed. If you feel philosophically committed to the conservation of the ban (though you haven't really demonstrated to me on what basis) then work the system- write the courts, lobby congress, get out there and petition to ratify Dubya's constitutional amendment. The "constitutional rights" issue is a red herring. No constitutional rights were violated by either slavery or the ban on women's suffrage- that didn't make them any less unjust. This is the question that every citizen is obligated to ask and answer for his or herself- is the ban on same-sex marriage just? Velleman argued yes, I argue no, you keep dodging around the issue and (seemingly) attempting to suggest that "social consensus" has some bearing on the question.
"Who decides that you've made your case?"
Each of us has to decide that for him or herself, and act accordingly.
"I guess I am a philosophical relativist then . . . but I would like to ask you to provide me with an instance where any concept of justice or the common good has been definitively proven by any philosopher."
I never claimed that "abstract notions of justice" could be proven, only that ethical questions might be decided on their basis. Would you really have difficulty in chosing between Paine and King George III on the question of democracy? Thoreau and Jefferson Davis on the question of slavery? Hanna Arendt and Hitler on the question of anti-semitism? This is relativism of a kind, I conceed, as the right is perceived in juxtaposition to the wrong, but a thoroughgoing relativist would insist that no choice may be made at all. The question of same-sex marriage presents moral alternatives just as stark requiring conscientious and reasoned choices on the part of each citizen. Are you seriously insisting that you are content to have your convictions decided by a straw poll?
Madman,
My point about relativism was precisely that it wasn't a matter of not being able to prove right versus wrong. However much you logically argue abstract notions of justice and the social good, whether George III or Thomas Paine was right about democracy comes down to what you beleive, not what you can prove. But you seem to want to be able to say that the rightness of same-sex marriage is as logically evident as the rightness of Hannah Arendt over Hitler (notwithstanding her relationship with that fascist Martin Heidegger). I don't think you've made your case.
"Are you seriously insisting that you are content to have your convictions decided by a straw poll?"
I'm content to have the "issue" (not my convictions) decided by the electorate, because I think it's not ultimately a matter of justice or injustice.
Kate Marie,
"But you seem to want to be able to say that the rightness of same-sex marriage is as logically evident as the rightness of Hannah Arendt over Hitler (notwithstanding her relationship with that fascist Martin Heidegger). I don't think you've made your case."
I haven't been trying to make such a case, I set out to demonstrate that Velleman's arguments don't hold water and got sidetracked by you. The question of same-sex marriage is, in fact, as self-evident as the one you reference, though none of what I've written so far really scratches the surface of why that is so.
You are correct that existentially, for each person, what is right boils down to what one believes, not what can be proven beyond any doubt. But beliefs can (arguably should) be formed and shaped by logical argumentation and investigation, and certainly in the public forum the question of whose beliefs should be made law is open to logical analysis. If you didn't believe that why would you take any interest in arguments like those of Velleman's? Why couldn't you just say "everyone act on their beliefs" and be done with it?
You talked about intellectual honesty before, so let's open a window and let that breeze into this discussion. The only normative principle upon which an iron-clad and coherent logical case for the ban on same sex marriage can be made is the immorality of same-sex love. Yes, many people believe that this is so (and many in America likely always will) and yes, it can not be absolutely discursively disproven (though it cannot be discursively proven either, just as the morality of heterosexual love cannot be absolutely proven either). But let's be clear- this is the normative principle that is instituted by the ban on same-sex marriage, and this is norm that opponents of same-sex marriage are fighting to defend.
If that is what you consider "justice" then I would have to conceed that your position is wholly integral (though I would still disagree with it). You would no doubt protest that I am wrong- that there are normative principles other than the immorality of same-sex love on which the ban might be conserved. Here is where you have not made your case. Arguments like Velleman's are attempts to end-run that debate and get around the question of the moral status of same-sex love. But I have yet to see such an argument that is logically cohesive or persuasive, in the end their advocates all collapse back upon some version of "because society says so."
"But beliefs can (arguably should) be formed and shaped by logical argumentation and investigation, and certainly in the public forum the question of whose beliefs should be made law is open to logical analysis. If you didn't believe that why would you take any interest in arguments like those of Velleman's?"
-- I do believe that, Madman, but what does that have to do with it? Where have I suggested that the questions of whose beliefs should be made law isn't open to logical analysis?
I do disagree with the point you make in the rest of your comments, but I'm getting pretty weary (where do you get all the free time?). Let me just point out that the the absolute certainty with which you reject the argument for polygamy (based on premises that are by no means conclusively demonstrated) seems mirrored by the absolute certainty with which you reject arguments against same-sex marriage. And the crux of your objection to Velleman seems to be that the presence of infertile heterosexual couples does as much violence to the biological concept of marriage as would the presence of homosexual couples. I have suggested that that is simply not the case, especially as a matter of establishing normative parameters for marriage based on biological categories. That you disagree with me here doesn't mean that I have failed to make a case or that you have definitively made yours.
Kate Marie,
"I do believe that, Madman, but what does that have to do with it? Where have I suggested that the questions of whose beliefs should be made law isn't open to logical analysis?"
What use is logical analysis if in the end the only legitimate path by which norms may become law is "general consensus?" You won't seem to allow that logical analysis could prove the general consensus wrong, or that it would matter if it did.
"Let me just point out that the the absolute certainty with which you reject the argument for polygamy (based on premises that are by no means conclusively demonstrated) seems mirrored by the absolute certainty with which you reject arguments against same-sex marriage."
My certainty in either case is only problematic if I'm wrong, which you have by no means conclusively demonstrated.
"I have suggested that that is simply not the case, especially as a matter of establishing normative parameters for marriage based on biological categories."
This has little to do with my critique of Velleman's argument, as it is an argument that Velleman himself does not make. As for "establishing normative patterns for marriage based on biological categories," one can't deny that insisting that a married couple contain one partner from either sex does so. What you haven't shown is how perpetuating those "normative patterns" does anyone any good. Certainly if we are to relegate millions of our compatriots to second-class citizenship by barring them from one of the most fundamental institutions of our society there must be some logical justification. One certainly can't argue that it will help promote or conserve a particular model of parent-child family. Maintaining the ban on same-sex marriage has not prevented an ever-increasing number of children from growing up in single-parent homes that break this "normative pattern." Unless you can demonstrate that lifting the ban on same-sex marriage would cause more hetero couples to break up, then the net result of lifting the ban on same-sex marriage would be an increase in the absolute numbers of two-parent households. Can you seriously argue that a child who has two parents of the same sex is worse off than a child who has only one parent left over from a "normative" marriage?
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