I’m dumbfounded as to why progressives accuse opponents of homosexual “marriage” of being bigots. A bigot, according to the Oxford American Dictionary and Language Guide (1999), is “an obstinate and intolerant believer in a religion, political theory, etc.” By definition, not all bigotry is religious in nature. An obstinate and intolerant believer in Marxism, socialism, or liberal egalitarianism is also a bigot, for those are political theories. Why, then, are those who support homosexual “marriage” not referred to as bigots? After all, obstinacy and intolerance go both ways.
It might be replied that it’s a matter of numbers: There are more bigots on the opposition side of homosexual “marriage” than on the supporting side. I’ve never seen any evidence that this is the case, and without evidence it’s just an assertion. What I have seen is repetition, ad nauseam, of the claim that “equality” (or “justice”) requires that the traditional definition of “marriage” be altered so as to allow two men or two women to marry each other. I have yet to see anyone justify this preposterous claim.
As I have written many times in this blog, equality (justice) requires that likes be treated alike and unlikes differently, in proportion to their differences. This understanding of equality (justice) goes back at least to Aristotle. The question, therefore, is whether, with respect to marriage, heterosexual couples and homosexual couples are alike. If they are, then equality requires that they be treated alike. If they are not, then equality requires that they be treated differently.
To show that heterosexual couples and homosexual couples are alike (i.e., similarly situated) with respect to marriage, one must, among other things, adduce a theory of marriage. I have seen no attempt to do this by those who support homosexual “marriage.” (I’m not saying it hasn’t been done, only that I haven’t seen it.) Why do we have an institution of marriage, anyway? What’s the point? Is it about children? If so, how, precisely? Is it about giving legal recognition to a friendship or other intimate relationship? Is it a financial arrangement? This question can also be asked about other institutions, such as promising, property, and punishment. It is the sort of question that philosophers, when acting in their philosophical capacity, try to answer. Of course, there is no guarantee that philosophers will reach a consensus on this (or any other) question, even if they have similar training.
The debate about homosexual “marriage” is not, in the first instance, about morality. It is about law. Specifically, it is about what the law should be. It is not about what the law is. We know what the law is. In only one state (Massachusetts) may homosexuals marry, and that, I predict, is merely temporary. (The Massachusetts Constitution will be amended to prohibit it.) A few other states, including Vermont, allow homosexuals to form civil unions, which, while similar to marriage in certain respects, are not identical.
Homosexual couples have always had the moral (and spiritual) right to marry. No state could abridge this right, even if it wanted to. Nor can any state prevent a man from referring to his male partner as his “husband” or a woman from referring to her female partner as her “wife.” As far as the law is concerned, people can call their partners anything they want, including “wench” and “old man.” The question is whether homosexual couples should have a legal right to marry. This question—a moral question about the law—cannot be answered without making reference to the nature and purposes of law, for law and morality differ in many relevant respects.
To see this, consider the drinking age. What is the point of having a drinking age? Why is the law concerned about drinking? Isn’t it because drinking alters people’s minds and because people with altered minds are dangerous to themselves and others? Most mature people can handle alcohol. They know how it affects them; they know their limits; they have enough self-control to stop consuming it. Most immature people can’t handle alcohol. The law, given its interest in preventing harm, wants to allow mature people, but not immature people, to drink.
Why, then, doesn’t the law say that all and only mature people may drink? Why, instead, does it specify an age? We know that not all people 18 years of age and older can handle alcohol, just as we know that some people younger than 18 can handle alcohol. Imagine someone arguing that it’s unjust for the law to use age as a surrogate for maturity. Some mature people are allowed to drink, even though they can’t handle it, while some immature people are prevented from drinking, even though they can handle it. It might be said that the law should be changed. “All and only those 18 years or older may drink” should be replaced by “All and only the mature may drink.”
This argument goes through if we’re talking about a moral right to drink. It fails miserably if we’re talking about a legal right to drink. For one thing, age is easy to ascertain. Maturity is not. The law cares about efficiency as well as justice. It is willing to trade a little justice for a lot of efficiency. As lawyers like to say, law needs bright-line rules. The age is set so as to minimize the number of injustices. If people begin to mature earlier (or later), the law can be changed to reflect that fact.
Let’s apply this reasoning to homosexual “marriage.” If the purpose of marriage is to protect and promote the interests of children by providing their parents with a bundle of legal rights and responsibilities, then no reference need be made to the sex of the parents. (I assume, for the sake of argument, that two men or two women can do as good a job of parenting as a man and a woman. I don’t for a moment believe this, but let it go.) The marriage rule would say something like “All and only those who (1) have children or (2) intend to have children may marry.”
I think you can see the problem with this rule. It’s analogous to the problem with ascertaining maturity. Legal authorities would be put in the difficult position of evaluating the sincerity of those who say they intend to produce children. And what if a couple says that it intends to reproduce but doesn’t produce children? Is their marriage license revoked? How much time are they to be given? Three years? Five years? Ten years? Would it be a defense to a revocation of the marriage license that the couple has been trying to reproduce? What would constitute evidence of trying, and how would it be verified? Would police officers search marital bedrooms for telltale signs of contraceptive use? Would couples sign affidavits to the effect that they have had uncontracepted sex a certain number of times each month?
Take my word for it: A rule such as this would be a legal (and, because of the infringements of privacy involved, a moral) nightmare. To avoid this nightmare, the law comes up with a rule that gives the correct results in most cases. The rule is that all and only heterosexual couples (above a certain age) may marry. The rule is grounded in reality, for most heterosexual married couples do in fact produce offspring, while very few homosexual couples do in fact have children. The rule produces injustices, to be sure, just as the drinking-age rule produces injustices; but the alternative rule is inferior when efficiency as well as justice is taken into account.
Philosophers tend not to give efficiency its due. Lawyers know better. Those of us who are both philosophers and lawyers know even better, for we understand how (and why) moral and legal arguments differ, and how they interact with one another. I am sometimes amazed by how little moral philosophers know about the law. They act as though every moral argument can be translated into a legal argument. But law is not morality; it is an autonomous institution, with aims, methods, problems, and values of its own. That moral philosophers don’t need to factor efficiency into their arguments doesn’t mean that lawmakers and lawyers don’t have to.
Admittedly, I have done no more than sketch my reasoning for opposing homosexual “marriage.” If you take this as a fully developed argument, then you’re mistaking it. The point of this post is to show that opposition to homosexual “marriage” need not be bigoted, in the sense of being obstinate and intolerant. It can be justified rationally, by people with open minds. Those who support homosexual “marriage” should grapple with arguments rather than hurl epithets. They should concern themselves with reasons rather than motives. I am no more “obstinate” or “intolerant” than those with whom I’m conversing on this important matter. Calling one’s opponent a bigot is an argument-stopper. All it does is signal that one has run out of reasons, or perhaps that one is too stubborn to do the painstaking work of analyzing and criticizing arguments. Isn’t that, ironically, evidence of bigotry?