About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, August 05, 2010

Judge strikes down California's ban on gay marriage

Just in, a federal judge has struck down California's voter-mandated ban on gay marriage, though this first-instance decision is likely to be appealed to higher levels of the American court system. Here's a rather long and confusing story in The New York Times, which does everything except state the above straightforwardly.

I haven't yet read the judgment and can't offer any analysis beyond the tentative paras below (maybe tomorrow).

First, it seems like a good outcome: as long as the state is going to recognise some relationships as "marriages", I don't see any good policy reason not to recognise gay marriages as well as straight marriages. Refusing to do so is a slap in the face for gay men and lesbians.

At the same time, this was a case about the validity of a voter-mandated law overturning ordinary law that provided for gay marriage, which in turn was enacted in accordance with an interpretation of the Californian constitution. In theory, the judgment should be based on fairly technical issues about which law prevails, and it's not clear to me whether the outcome is technically correct, as opposed to welcome from the viewpoint of social policy. Higher courts will doubtless wrestle with that, and I'll try to make sense of it myself when I read the full judgment.

EDIT: See the comments below - apparently the above para is misleading, and the case was decided squarely on issues of compliance with the federal Bill of Rights.

In the longer term, the state should get out of the marriage business altogether and simply leave the courts clear authority to deal with relationship break-ups in an equitable way - looking after the best interests of children, where relevant, and dividing property in a way that recognises the contributions and legitimate expectations of those involved. Courts already do those things all the time, and there's no longer a need for a legal status of marriage in Western societies.

But official recognition of this is a long way off. So long as the state formally recognises some relationships as marriages and assigns them a package of special legal rights, there's no very strong reason not to recognise same-sex marriages. I could make up reasons, and some of them might have some marginal merit, but none of them outweigh the discriminatory message sent by the state if it fails to provide for same-sex marriage.


Zachary Voch said...

I would be interested in hearing any objection to gay marriage of even marginal merit...

I have yet to hear any, and this troubles me because I like to be able to argue for all of the important takes on a given issue before forming a solid opinion.

Russell Blackford said...

Oh, the obvious marginally meritorious argument is very simple. The state should not recognise marriage at all. Abolishing it is too difficult, but we should certainly not extend it. Let it fade away naturally over time.

That's not an argument that could be put in court, but I'm sure that something could have been put in court about how it's not strictly necessary to extend marriage beyond its traditional meaning and area of operation. Marriage is an honoured tradition that has an historical origin, but which we don't need to extend and don't strictly need at all.

After all, long-term gay relationships are not illegal (banning them would actually be unconstitutional in the US since Lawrence v. Texas). No one is being prevented from having these relationships, so no one is suffering terrible harm, such as being prevented from having sex with whoever they want. These relationships are just not given formal recognition by the state.

Society won't collapse if we fail to extend that sort of formal recognition beyond its traditional area of operation.

This line of argument isn't as strong in the US as in other Western nations, since the US is unique in attaching a lot of legal rights to marriage. Gay couples are missing out on legal rights that they'd have in Europe even if same-sex marriage was not recognised. But the argument could be put, even in the US, and it's certainly true that the failure to extend marriage won't cause societal collapse. Indeed, we could abolish marriage altogether throughout the Western world and it wouldn't cause societal collapse.

None of the above, of course, is how the case was argued, for obvious reasons. But it could have been, and it would have at least some force (I used the word "marginal") in my opinion.

Le'ts not focus on that, though. I'd rather not get in an argument with someone on the same side as me over a grudging concession that I made in the interest of fairness.

John Pieret said...

In theory, the judgment should be based on fairly technical issues about which law prevails, and it's not clear to me whether the outcome is technically correct, as opposed to welcome from the viewpoint of social policy.

A little background in American Constitutional law may help. The original California Supreme Court decision was soley based on the California constitution. This is a fairly common ploy ... uh ... strategy for state courts who do not want the Federal Supreme Court (whose interpretation of the Federal Constitution is binding) to reverse their decision. Unfortunately, in California, unlike most states, the state constitution can be amended by a referendum that gains a mere 50+ percent of the vote. Proposition 8 amended the California constitution to remove the basis the state Supreme Court's decision.

The present decision is based on the Federal Constitution's Bill of Rights and doesn't involve whether the common law or the referendum prevails (if the amendment by referendum doesn't violate the Federal Constitution, then it prevails).

Russell Blackford said...

Thanks, John - that's useful (much more useful than what is in the New York Times). You've saved me from having to work out for myself that the case was ultimately decided on the basis of a breach of the federal Bill of Rights.

That is going to make it a lot easier to challenge, unfortunately. It's not at all clear to me that the Bill of Rights actually requires the provision of gay marriage. It may be desirable from a policy viewpoint and all, as I've said, but I'm actually a bit sceptical about whether, for example, equal protection of the law can be extended this far. The court in Lawrence v. Texas was unwilling to say that, and the current balance of the US Supreme Court is not all that favourable to a case like this.

While I'm looking for some time to read the judgment, can you tell us briefly what argument prevailed with the judge?

Mike said...

"The state" uses marriage as a test for crossing borders.

I was transferred from Australia to the US for work some years ago, but my partner's status was not recognised, so had to be brought in as a student (which is not always going to work). It's at the borders of a nation that the US argument "it's a state issue" falls down. Unless you're a member of the diplomatic corps and can get a special visa issued for a same-sex partner (more common than you'd think), then there is a penalty.

Of course whether you think one set of people - and the children thereof - should be stigmatised by current "honoured tradition" is a personal matter for you. It's like Penny Wong who respects that tradition but none of those traditions which would have stopped her as a homosexual, non-Anglo-Saxon female from being in parliament.

One analysis of today's result may be found here: http://www.towleroad.com/2010/08/its-in.html

That Guy Montag said...

I rather liked the line Michael Sandal took on this in last year's Reith Lectures. In particular he highlighted the fact that the Supreme Court ruling on gay marriage wasn't actually arguing from a position of rights but instead pointing out that it is right for society as a whole to recognise and value the kind of feelings that marriage represents and in particular that society should value the same commitment in a gay couple for exactly the same reasons.

Maybe I can be accused of being a romantic, but I'd argue gay marriage is actually a rather wonderful thing that's worth cultivating like green spaces, inclusive communal events and public art.

March Hare said...
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March Hare said...

Zachary, gay marriage is wrong. Because all marriage is wrong.

Not marriage per se, but the state's recognition of it as a special arrangement and its direct and indirect endorsement of it through financial and legal benefits.

The best argument for not allowing gays to marry (which isn't far from Russell's point) is that it increases the burden on people who are being actively punished for not marrying or not being able to marry. This group includes singles, couples who don't want to get married and polyamorous groups.

The state has no business trying to socially engineer our relationships using legal and financial bribes and penalties.

On the other hand, I think it is wrong that gay couples do not have access to the same rights as a straight couple and there is no logical or ethical justification for that. But... there is no reason why ANY couple should have extra rights over other citizens simply because they signed a piece of paper called a marriage certificate.

I am glad to have someone as clever as Russell on the same side as me on this issue as it often feels like I am fighting a lone battle for the polyamorous (since they go to jail if they try to marry their loved ones!) and singles.

Mike said...

"we could abolish marriage altogether throughout the Western world and it wouldn't cause societal collapse."

Not valuing the "kind of feelings that marriage represents" (per That Guy Montag) would cause a collapse of the type of societies we have today. It's not all about sex and tax, which seems to be Russell's distillation of the rights and wrongs of marriage.

Amy said...

I think it should be legalized because it can reduce world population and abortion.

J. J. Ramsey said...

I wonder what this could mean for the federal "Defense of Marriage Act," brought to you by the people who want to defend the institution from people who want to get married. I'd hope it eventually get struck down ... assuming that this judge's decision doesn't get overturned on appeal.

March Hare said...

So Mike, if the government refused to give people tax breaks when they got married then society would collapse?

Society values many things, rightly and wrongly, and the government doesn't feel the need to give bribes or special treatment to people for doing it.

Amy, no-one is suggesting making marriage illegal, simply removing the state's involvement. People are entitled to tie themselves into whatever legal knots they wish and to live monogamous lives with the person they love, but they don't require a tax break to do it.

Mike said...

@March Hare: I explicitly said marriage was about other things than (sex and) taxes. That seems a wilful misreading.

March Hare said...

@Mike, and no-one has any issues with the other things you say 'marriage' is about. What we have issue with is the state rewarding/punishing choices it has no business being involved in.

Marriage the concept could disappear but most folk tend towards monogamous relationships, they tend to tie up their finances together and all of this could and would easily be achieved without any state intervention in people's live.

All we're saying is that the state recognition of marriage does nothing to stop a society collapsing.

Mike said...

March Hare: Read Russell's comment that I quoted. He talked about the abolition of marriage, not of state subsidies. You seem to be setting up straw men on both sides to draw towards your own thesis.

march Hare wrote: "All we're saying is that the state recognition of marriage does nothing to stop a society collapsing."

Really? That's an entirely new argument.

March Hare said...

Mike, I will not assume to speak for Russell but my take on it is:

If the concept of marriage were to disappear then most people's natural inclination would tend towards a monogamous relationship and there would be legal entanglement between the participants in terms of finances and rights much as there is now. People signing these legal documents would want friends and family round to celebrate their (insane) agreement to spend the rest of their lives together forsaking all others.

The only difference between that and what we currently have is that same sex couples could do it and there would be nothing to prevent numbers greater than two entering into the arrangements.

Oh, and there would be no state benefits or penalties for people based on their choice to sign the legal agreement or not.

Mike said...

I think you're leaving marriage as a set of cold contractual conditions.

How do you intend to handle hospital access rights, inheritance, immigration, and other issues?

Oft times by turning everything into "the letter", the spirit is lost.

March Hare said...

Mike, you're entirely right that I'm turning it into cold contractual conditions for that is all it is. Every single thing you think a marriage is for happens, automatically, between people. The only difference between it happening when your married and when you're not is the cold contractual conditions.

You ask about all the outside issues - well the way they are handled now, when people ARE married, is by... [drum roll] cold contractual conditions. Legal rights are set up such that a spouse gets medical say etc. and that is implicit in the marriage contract so why not simply have it as a contract to sign as above? Inheritance? Leave a will, or have a will as one of the documents signed as part of your togetherness ceremony. This is really basic stuff.

"Oft times by turning everything into "the letter", the spirit is lost."
Could be. Could be that by explaining a rainbow you rob it of its beauty. But just because I can be cold about legal terms now doesn't mean people weren't cold about marriage when it was done to join kingdoms or houses, or when people actually got down to writing what it meant to be married. The law is a cold place, but someone has to write the contracts that you sign.

Mike said...

"you're entirely right that I'm turning it into cold contractual conditions for that is all it is. "

Then I pity you.

March Hare said...
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March Hare said...

Mike, such an avoidance of the facts and an emotional response is exactly why the right wing Christians are not allowing gays to marry.

If one cannot be dispassionate about a subject then one has no business deciding it for others.

And I have yet to see a single argument in its favour, other than some generalised warning about the collapse of society (of the type we have today) should marriage be abandoned. Not that you mention what type of society would emerge even if your claim was correct. Could it be that a better one would emerge?

Mike said...

I can't accept that what you say is simply the facts. To draw a comparison with some of the other topics running on this blog, you're for reducing marriage to a contractual "simulation" that may not allow for the emergent qualities of a less atomically-defined arrangement.

In other places where trees replace forest, I think a lot of civil/community relationships have suffered by reduction to tightly specified rules. Where once "it took a village", we now have a mesh of legal-economic relationships that don't necessarily characterise the benefits of what came before.

IIRC the book "Freakanomics" covers some other cases where replacing looser pre-existing frameworks for interaction with contracts proved disastrous because it reframes all the interactions as purely economic, and shuts out opportunities for personal responsibility and altruism.

March Hare said...

Mike, the problem you have here is that it is actually the current marriage legality that is the rigid structure. If we abandoned the concept of marriage then we could have a much looser, À la carte, arrangement that allows any number of people to be as tightly or loosely bound as they see fit.

Mike said...

If marriage were a rigid structure, then all marital disputes could be settled in seconds by a computer program running through the contracts you maintain already exist.

I think the "three body" problem in buman relationships is even harder to tie down via contracts than the mathematics of uniform spherical bodies.

March Hare said...

"If marriage were a rigid structure..."

Marriage contracts can only be between two people, one male and one female, there is a single document with nothing that can be changed except by extra legal contracts (pre-nups etc. - and even some of those are over-ridden by the marriage contract). Which part of that is NOT rigid?

Mike said...

One one hand you've chosen to define a marriage as purely the written contractual elements (and also that it can only be male+female). You don't acknowledge any other part of the relationship, or the social aspects.

On the other hand, you don't acknowledge how complex it would be to design equivalent contracts for a multiplicity of partners, unless you essentially form a commercial enterprise with varying degrees of ownership and voting rights (it _is_ commerce once you've reduced it all to the cold contractual conditions that you prefer).

March Hare said...

For goodness sake, Mike: "You don't acknowledge any other part of the relationship, or the social aspects."

That's because all these are available to people whether marriage exists or not, or is state sponsored or not.

If marriage exists or not is irrelevant to me.

ALL I care about is the state not rewarding one lifestyle choice over another and arbitrarily banning people from something that they really should have no say over to begin with.

"On the other hand, you don't acknowledge how complex it would be to design equivalent contracts for a multiplicity of partners"

Ahh, that old chestnut. Just because something is complicated doesn't mean we shouldn't do it. Also, do you not think these things would become standard off-the-shelf contracts after a very short while?

So you have no actual positive aspects to marriage, as it stands, that are not available to anyone in a committed relationship outside of tax breaks and legal issues? Which, I believe is what you were complaining I had reduced marriage to.

Russell Blackford said...

Yes, no one is saying that people shouldn't fall pair off, fall in love, share lives, have children, or whatever. They can conduct a ceremony and have the relationship recognised by their friends and family, and by their religion of choice if that's what they want. That's all great. But there's no longer any reason for the state to be involved in registering relationships as marriages, as shown by the fact that many people do all those things without going and getting the relationship registered with the state as a formal, legal marriage.

In Europe and Australia and many other places, the tendency is for all the legal rights otherwise associated with marriage to be just as available to de facto couples. There's no reason, apart from religious ones, why that can't also happen in the US. The whole idea of a legal category of marriage is becoming an anachronism in the West. It has long outlived its use of regulating who can have sex with whom.

That said, as long as it exists it should be available to gays as well as to straights.

March Hare said...

While I'm in a semi-sensible ranting mood, why do next of kin get to make decisions about me when I'm incapable?

Surely an intelligent human with intelligent friends can do better than biology, or marriage, to pick the people he thinks can make the best decisions for him?

We should have a living will that determines all these factors, something we can change online as our circumstances change. Sure, it can default to family but if you're estranged from your family they are not who you want at your bedside when you wake up from a coma.

The state assumes too much about our wishes and even when they have been made perfectly clear the next of kin can sometimes over-ride them (gay partners not allowed at hospital bedside at request of homophobic estranged family for example.)

That Guy Montag said...

March Hare

There's actually a lot I agree with you about when it comes to marriage not least that if Polyamory floats your boat go for it. The actions of consenting adults simply aren't the responsibilty of the state to manage.

That said, the argument from Michael Sandel remains an interesting one. First off, here's the ruling he referenced from the Massachusetts Supreme Court.

Now Sandel is explicitly an Aristotelian so we're talking good life arguments but also more explicitly societal reactions to problems. The best example of this kind of approach for me is how we should respond to racists. I genuinely think it's a mistake when we turn to a racist and tell them that they have no reason to discriminate or it's against the human rights of ethnic minorities; no the response to a racist is that their beliefs about others are abhorrent and the society doesn't support them and then showing that society doesn't support it.

The concommitant of this view is that society is not doing anything wrong when it puts public resources into promoting public goods that aren't necessarily rational or justified in terms of rights. Do we really need to justify government funding for public festivals in terms of income from tourism? Do you want to engage in a debate about public funding of the arts and culture? When we treat these discussions as if they're about some other good we lose sight of the reason why we support them.

So while I can agree that there are a lot of irrational aspects to marriage, certainly in terms of how it's viewed legally, that need to be fixed up, I think the State is not in principle wrong when it establishes institutions like marriage. Equally, I support gay marriage not because it's an unreasonable abridgement of their rights to prevent it, even though it is, but because I'm an emotional romantic who gets all teary eyed at the idea of two (or more!) people loving each other like that and a society that feels the same and expresses it is a better one for it.

That Guy Montag said...
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Anonymous said...



March Hare said...

Over 50% of marriages end in divorce.

Society is still here.

March Hare said...

Or, to put it more verbosely:

"Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society."

Prove it. Show me the study that has been carried out that in any way backs up the implied claim that a society without the "legal, financial, and social obligations" of marriage would result in social unrest or in any other way a less fair or enjoyable society.

"society is not doing anything wrong when it puts public resources into promoting public goods"

Well, prove marriage is a public good and you'll have mostly won me over.

Heck, I can probably 'prove' that if everyone was a conservative Christian then we'd all be better off so why not give them tax breaks as it would encourage people to adopt that choice.

And there's the rub. Public policy should be about incentivising activities that we consider for the public good. Being single is not necessarily a choice, certainly being gay or being in love with more than one person isn't, yet you seek to punish those people - and it IS punishment - for something that is not in their remit to change.

When society starts punishing people for who they are, as opposed to what they do, then where does that leave us in terms of universal rights?

That Guy Montag said...

Wrong argument Mr Hare: It's a "society is better argument" not a "society will end argument". It's a "what is the best kind of person" kind of moral answer as opposed to a "what is the best kind of result answer" or more bluntly it's Virtue ethics as opposed to Consequentialism.

I think a stronger argument would be to show some disanalogies between my response to racism and marriage and while I'll try and figure out some of those when I'm not at work, I wouldn't mind it much if someone did my job for me.

That Guy Montag said...

Actually, you published your comment as I published mine. I've just answered the public good argument by pointing out I'm using a different scale; your second point is a stronger one in that it's an open question whether or not a particular kind of person or arrangement is better than another. Sadly the previous point that I'm at work still applies but if you feel like developing it before I get a chance to reply I'd love to hear your thoughts.

March Hare said...

You say you're using a different scale, yet I have still to see anything other than a judge's opinion that society is better off with the institution of binary marriage than not.

I see no logical reason why a lesser financial entanglement (or legal, or social) would result in a worse society. In fact I can point to many examples of where the benefits provided by the state lead to people forsaking happiness outside of their loveless marriage to keep healthcare.

If >50% of marriages end in divorce it strikes me as self-evident that we'd benefit as a society by having less binding financial and legal links between married people.

And if you really want to push the analogy to racism then how about this:
Black people commit a disproportionate amount of crime, black people generally earn less and so pay fewer taxes. On this basis shouldn't we incentivise not being black by giving tax breaks to non-blacks?

Ani Sharmin said...

I'm very glad about this. There's no reason not to include LGBT people.

As for the arguments for and against marriage in general, my main concern would be able the legal rights. There are many legal rights available to people with a marriage license. Otherwise, people would have to go to a lawyer to get these rights in a contract, and not everyone could afford that. If we had a way to make these rights available more easily and cheaply to everyone (even those who are not married, e.g. if you wanted your roommate or friend to make medical decisions for you in case of an emergency) then I wouldn't mind if there was no legal type of marriage.

I think Mike makes a good point about international matters. We would have to rethink and redefine who is considered family when it comes to immigration. If there was a broader definition of "family" (such as those who you have some legal rights with, even if you are not married), then I wouldn't mind not having legal marriage.

I'm not passionate about the actual existence of a legal type of marriage, but if we have it, it should include LGBT people as well. Even if we don't have a legal type of marriage in the future, extreme religious groups will still have to used to the idea that the word "marriage" does not belong to them. People who have a secular ceremony could use it too.

That Guy Montag said...
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That Guy Montag said...

First off, I'd rather not get my argument too tangled up with the court ruling I linked to; I included it simply because Michael Sandel uses it to make a point I agree with. His analysis is his and I'm not in a comfortable position to recreate it so please don't consider it as evidence or even key to my argument. It's just there for interest,

Now the analogy I want to draw with racism shouldn't be at the level of legislation. I'd rather point at the fact that society as a whole has largely reached a point where even the racists feel embarrased about admitting that they are racist. It's a good thing that when say, the BNP leader Nick Griffin gets invited to speak on BBC Question Time, that we don't censor him. That doesn't mean that it's not also right that we as a society get together and say it's wrong and agree that it's wrong and show that we think it's wrong through protests, banners, songs and a hostile audience. The goal is for there to be a vague cultural miasma that says that saying bad things about people because of their race isn't a good thing. Equally the argument is that the whole of society is just nicer because people get into relationships and make deep emotional commitments to each other and we're not doing a harm by valuing that. In fact I think I like people who get emotional at honest expressions of feeling and people getting together and affirming that and hell even a bit of a legislation providing benefit to that arrangement, is for the society and people at large a good thing.

Now I agree with you completely that there are a lot of problems with the specifics of legislating such things, such as when the society believes for no good reason that the same emotions are less valuable in homosexuals but I'll include your point about polygamy; the argument I'm making is that we're missing what's important about the debate when we think the argument is about rights. If we understand tax break for married couples as valuing the emotion or the relationship, the wrong that is committed is not of arbitrarily not extending a benefit to a minority. Even though that would be a wrong I'd argue the real wrong is not valuing the same emotion in the minority and rights talk misses this. Talk of benefit misses this.

That Guy Montag said...

Just to quickly address your argument about benefits to non-blacks, it's necessary to point out that in your example race is the proxy for the crimes which are the real target of sanction or benefits, so why exactly would we be targeting a proxy when we can target the crime? No, the problem I find with virtue ethics is it's not entirely clear to me how we decide which virtues are the ones we ought to target. But then again, I'm not very well read on this stuff so someone probably has managed it. I just believe there are instances, such as racism but also in this case gay marriage, where it fits my intuitions about the wrongs better that say Utilitarianism.

March Hare said...
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March Hare said...

I have yet to see any evidence pointing to a binary marriage (straight or gay) as being of reasonable benefit to themselves or society.

And even if it was, so what? We acknowledge that being fit and healthy is good for individuals and society yet we don't elect to reward fit people and punish unhealthy ones.

While I am sticking up for polygamous and adult consensual incestuous rights it should be pointed out that even if they were all granted equality MY group would still be punished - singles!

Why do you constantly insult me (I know you don't mean to) by suggesting that I am less productive, less valuable to society because I choose not to sign a document that sexually, legally and financially links me to someone?

If I get a joint mortgage with someone, I am more linked to them (25 years usually) than if I married them (24 years average). Exactly what magical benefit to ourselves or to society is occurring if we elect to get married rather than (or in addition to) simply get a mortgage together?

"If we understand tax break for married couples as valuing the emotion or the relationship..."

If marriage is good in and of itself why do we need to bribe people? This makes no sense, it's taxing the losers to pay the winners. It also says (as I pointed out above) society values this type of arrangement and we will punish anyone who isn't like us.

That Guy Montag said...

Well said, and as I pointed out that very question is a big one that needs to be asked. That said, I do believe that Virtue Ethics arguments have their place.

Let's concentrate on discrimination because I think it actually is a very stark way to highlight the argument in a way that marriage isn't though there is a way in which the same arguments can be used as I've been trying to show. Why is the Comic-Con response to the Westboro protest being feted the way that it is? Sure they could have just taken the legal route, maybe engaged in an argument, maybe they could campaign to strengthen anti-discrimination laws. You're essentially arguing that these are the only ways that we as a society can respond to issues and I'm suggesting that the Comic-con have engaged in a perfectly reasonable ethical response.

Now this isn't me saying that there can't be tensions with principles of equality and Im fully agree with you that all our legislation and state actions need to meet the requirements of equality, I am only suggesting that some ethical responses aren't based in laws or utilitarian calculation but rather in emotional affect and human community.

March Hare said...

"Let's concentrate on discrimination"

Lifestyle A, with no benefit I can either see, or evidence pointing to any benefit, is considered good. Let's give them tax breaks.

Lifestyle B-Z is not normal, let's at least discourage the aberrant behaviour by taxing them more than people who we like.

I was gonna continue, but answer this. That should be enough.

That Guy Montag said...


I've been working under the assumption here that you've been taking a particularly stark line in the hope of generating a debate and I think those sorts of tactics are useful. Your last post however is a bit perverse given that I've agreed with you on that point at every stage. Read back, it's a point I make consistently. So, my suggestion to you is to take a step back and maybe just consider why I don't think that an ethics that promotes say groups getting together and condemning wrongs such as racism or being happy at weddings is incompatible with a completely justified concern for equality. I am not some Christian nut who thinks god had given me a revelation about the humanity's real state, nor do I think that there is one true way to lead a happy life or that people who choose a different path to their happiness are wrong. I do think that defending things like gay marriage from a position purely of rights devalues the people involved and should be avoided in favour of an ethics that says simply that people matter, regardless of their value to society.

The only other point of contention I can see is that you apparently are committed to the idea that this has to be a zero sum game but I can't see that. The problem is that if we get into a debate on the question of value, which is where I would take this, we're going to end up quite a long way away from the ethics of discrimination and I'm not willing to do that because I'm not sure if you're honest participant here. I hope you can prove me wrong.

March Hare said...


I have said from virtually post one that there is no evidence that binary marriage is in any way beneficial to the participants or society.

My position weakens considerably should any evidence be forthcoming.

Other than that I am not convinced it is society's, or the state's, place to reward/punish the living/bedroom arrangements of citizens, let alone the seemingly free decision of citizens to freely enter into a biding legal arrangement with each other.

My previous post was terse with good reason - the case for marriage has not only not been proven, it has yet to have a single piece of evidence put forward in its favour in this thread. In a similar vein I have put forward evidence that joint mortgages are at least as socially stabilising as marriage. I have shown that all the benefits of marriage can be attained without the use of a marriage contract, that marriage itself discriminates against various lifestyles that are not necessarily the choice of people in that situation yet they get punished, or forced to reward people who are ostensibly better off than themselves, and they are viewed as less valuable to society and as citizens.

I am very open to a conversation but all anyone has done thus far is avoid presenting any evidence. You compare support for marriage to support for anti-racism, but conflating one position without evidence to another that has evidence does not provide your position with evidence.

That Guy Montag said...


And I'm back to telling you that I'm suggesting a different concept of the good from the Utilitarian concept of maximising welfare. It's perverse to stand there continually telling me I'm not providing evidence that something promotes your particular view of the good when I'm here trying to suggest a different view of the good. Unless you can grasp that distinction I can't carry this forward.

March Hare said...

"I'm suggesting a different concept of the good from the Utilitarian concept of maximising welfare"

Which you have yet to define or provide evidence for.

That Guy Montag said...

I'm left a touch speechless because defining and giving evidence for this alternate view is exactly what I've been doing all along and I can't be held responsible for your inability to grasp the point. Go and read up about Virtue Ethics and hell a bit of Utilitarianism while you're there. Try and get to grips with what the goal is when we engage in Metaethics and maybe then you can come back and tell me I've not provided evidence or given a good enough description.

March Hare said...

Russell, help!

I cannot find a single thing in any of your comment that are pro-marriage.

My friend wikipedia describes virtue ethics and it seems complete nonsense, but even if I give it my full attention you have yet to describe any 'goodness' in binary marriage.

I do not want to talk past you, and you may consider teaching me virtue ethics to be a waste of time (I think it would be) but the one thing I would say is that morality is a construct of stupid apes. We need to move beyond the contradictory and into some kind of scientific or objective light. Whether that is deontological (unlikely) or consequentialism (not on my watch) or even virtue ethics, if I can get beyond wikipedia, then so be it.

But please, TGM, define your position, lay out your arguments, and, in simple terms, just for me, explain why any part of marriage is so virtuous that those of us who can't/won't get married should subsidise those who do.

That Guy Montag said...

Then I can only suggest using better resources.

March Hare said...

Thanks for the links, listening to them now. Always good to learn more.

However, you have yet to show why anyone should think that binary marriage is good.

Or why it is so good that those of us who do not wish to enjoy that goodness should subsidise those that do.

Russell Blackford said...

I do know what virtue ethics, MH; in fact, I'm very familiar with it and quite sympathetic to it ... as long as its claims are not too ambitious.

But I don't think it has much to do with public policy.

I don't think virtue-based approaches to ethics can be justified all the way down, any more than any other form of ethics (consequentialist, deological, or whatever) can be. On the other hand, given our values, goals, and so on, we can make decisions about what sorts of dispositions of character we'd like to have and try to cultivate, what sorts of dispositions of character we'd like to look for in friends, which ones to try to inculcate in children, and so on. Moreover, I do think that we often do best, in practice, by focusing on "good" and "bad" dispositions of character, rather than on moral rules or consequentialist goals. Much of what is in virtue ethics is common sense, and it's not surprising that the ancient systems, such as those of many Greek philosophers, as well as much in Confucian thought, can be seen as systems of virtue ethics.

All that said, I don't believe that the role of the state is to make us virtuous, at least beyond a bare minimum. In modern times, ideas of which dispositions of character are virtues and which ones are vices are very controversial and deeply contested. One person may consider chastity and modesty to be virtues, while another considers them vices.

We need a lot of freedom to decide for ourselves which dispositions are virtuous, just as we need a lot of freedom to decide for ourselves which worldview is correct.

Generally speaking, the state should, IMHO, act as a safety net, protecting us from force or fraud, giving a certain economic guarantee to us all, and doubtless offering a range of programs that give us opportunities. But it should be very careful about imposing one conception of virtue on people who have a wide range of competing conceptions of virtue.

The state does not exist to enforce someone's contestable concept of morality and it does not exist to enforce someone's contestable concept of moral virtue. Whatever theory of ethics you adopt for your own life, it doesn't follow that the state should try to impose it on others who see things differently, or even to try to teach it to them. Ethics and legal/political philosophy don't track each other so simply. Indeed, modern day politics is largely about what regulation to have in a society where no one theory of what is moral or virtuous can be allowed to prevail by force over others.

Russell Blackford said...

Ugh, a couple of nasty typos in that last comment of mine. When I wrote "deological" I must have got distracted halfway through because I meant to write "deontological".

That Guy Montag said...

Thank for that input Russell you've helped clarify something I've been trying to get clear in my mind.


I'd like to apologise for getting as testy as I did. I hope you can appreciate that I do in fact largely agree with you and for exactly the sorts of reasons Russell gave.

At best I can sum up my only disagreement with you as saying simply that I don't think it's inconsistent for a modern state to provide legal protections in certain arangements or maybe even benefit in almost exactly the same way as it might fund public art, but whether or not it should is a political question that doesn't deal with the moral question. As Russell completely rightly points out the moral question is a separate issue and it's that which I think that gets better served by taking a position in virtue ethics as opposed to a deontological or consequentialist position. Hopefully that helps clear up any confusion here.

March Hare said...


I may be oversimplifying Virtue Ethics, but it seems to me that I was asking for evidence and you would not/could not provide evidence because the whole point of VE is that it relates to a character trait that you have arbitrarily decided is 'good'.

Explain how a meaningful dialogue can exist when you say state sponsored marriage is good because it is a trait that you applaud and I say it is bad because it subjugates individuality and unfairly punishes people with no noticeable benefit to society.

I want some evidence that something is good before I fund it and you simply pull the idea that it is good from your metaphysical bag of tricks which allows no argument.

Not to go off on one about VE, but is it not culturally based hence the veiling of women could be good in certain circumstances, simply by being culturally considered good? Would you argue for polyandry if you were a strict Muslim? Or circumcision if you were a Jew?