Spencer of Cairo writes,
I've been following your writing on same sex marriage and I've got to say I think you have, in a certain sense, taken the bait. SSM proponents demand much of conservatives that they are in no position to demand. For instance, they demand that conservatives, in order to justify their views on marriage, indicate a single property or set of properties unique to the relationships that currently count as marriages. "All and only heterosexual couples have what common feature?" is the challenge.
You try to meet this demand by specifying potentiality to procreate. This is only true on a metaphysical understanding of "potentiality" – in the ordinary sense, 70-year-olds have lost that potentiality.
Spencer, I think you have misconstrued my argument. I did not use the word 'potentiality.' And I don't know what you mean by a metaphysical as opposed to an ordinary understanding of the term. Here is what I said:
It is biologically impossible that homosexual unions produce offspring. It is biologically possible, and indeed biologically likely, that heterosexual unions produce offspring. That is a very deep difference grounded in a biological fact and not in the law or in anything conventional. This is the underlying fact that both justifies the state's interest in and regulation of marriage, and justifies the state's restriction of marriage to opposite-sex couples.
I did not make the (false) claim that every opposite-sexed couple has the power to procreate.
Unfortunately, I think conservatives do themselves great harm when they rely on metaphysics in the
marriage debate when they have recourse to other lines of response. I respect metaphysics, but it is rarely useful in politics.
I disagree completely. The same-sex marriage question and most if not all of the 'hot button' issues currently debated are metaphysical at bottom. Consider abortion. Everything rides on the status of the fetus. Is it a person in the normative sense, i.e., a rights-possessor? What are the criteria of descriptive and normative personhood? What are rights? In what are they grounded? These are metaphysical questions. A powerful anti-abortion argument is the potentiality argument. Underlying it, however, is broadly Aristotelian metaphysics. Those who reject this metaphysics will be opting for some metaphysical alternative. Questions about diachronic numerical identity arise, questions that are plainly metaphysical. (See Fission and Zygotes.) And so on.
I could show the same for most of the 'hot button' issues. In general, political philosophy rests on normative ethics which rests on a theory of human nature (philosophical anthropology), which is turn presupposes metaphysics. So metaphysics is unavoidable. One point I will concede, however, is that we ought to keep religion out of these discussions, assuming we are addressing fellow citizens as opposed to co-religionists.
Let me remind you that very often the law makes distinctions where there is no essential difference, as when we pick a certain age as the baseline for sexual consent. There is a certain kind of arbitrariness there, but one we must be stuck with in any event. So, essential difference is neither necessary nor sufficient for a difference in legal and social status.
You are making it sound as it it is wholly arbitrary where the law draws a line. I gave the example of driving. It is somewhat arbitrary, but not totally arbitrary, to make the legal driving age 16. There are excellent, non-arbitrary, reasons for not making it five or ten, or 25 or 30. These reasons are grounded in biological and psychological facts. As for the age of sexual consent, a non-arbitrary lower bound is provided by puberty. Similarly with voting and drinking alcohol. There is a range of arbitrarity between, say, 18 and 21. But there are excellent, non-abitrary reasons grounded in biological and developmental facts for keeping six year olds out of voting booths and bar rooms.
So I find your comment confused. No essential difference need be cited for making the driving age 16 rather than 17, but essential differences are relevant when we move beyond the range of arbitrarity. I am tempted to say that the lower and upper bounds on the range of arbitrarity are themselves non-arbitrary.
Applying this to same-sex 'marriage,' there is nothing arbitrary about the law's not recognizing SSMs when it recognizes OSMs. For there is the essential difference that procreation is impossible in a SSM but not in an OSM. Arbitrarity and a bit of unfairness come in when the law allows non-procreating OS couples to marry. But as I said, practical laws cannot cater to unusual cases.
A better response, and the one I use, is to challenge the challenge. Tell your interlocutor, "If I must produce some relevant property common to all heterosexual couples, then it should also be incumbent on you to specify what kinds of relationships can count as marriages, and what is the morally relevant property that all and only those relationships have. Since you think this kind of challenge is proper, you must already have something in mind to defend your side. So go on, then." SSM proponents hate this move, because it reveals how much their strategy relies upon burden-shifting and tacit double standards. I submit that your interlocutor probably won't even tell you how much change he is committing himself to, or what marriage should be. But suppose he says "Any two consenting adults, regardless of gender." Then ask him what is the special property that all and only couples have, that no threesome has. He will not have a persuasive answer.
I deny that your approach is better, though I grant that it is a reasonable one and does have the advantage of side-stepping the contentious metaphysical questions. But it has the disadvantage of entangling us in burden-of-proof considerations. You accuse the same-sexer of shifting the burden of proof. But he will reasonably demand to know why he should shoulder the burden. My position on burden-of-proof is that
In philosophy no good purpose is served by claims that the BOP lies on one side or the other of a dispute, or that there is a DP [defeasible presumption] in favor of this thesis but not in favor of that one. For there is no fact of the matter as to where the BOP lies. BOP considerations are usefully deployed only in dialectical situations in which some authority presides over the debate and lays down the rules of procedure and has the power to punish those who violate them. Such an authority constitutes by his decision the 'fact' that the BOP lies on one side rather than on the other. We find such authorities in courts of law. But there is no court of philosophy.
It is bad sort of conservative who stands on tradition and takes the way things have been as sufficient justification for their remaining so. The wise conservative admits that the presumption in favor of traditional ways of doing things is defeasible. And so he takes the challenge of the same-sexer seriously. He tries to explain why the law should recognize OS but no SS unions as marriages. Furthermore, if he cannot meet the challenge, then he ought to re-evaluate and perhaps change his views about marriage. It would be unphilosophical of him to stand on tradition and ignore sincerely intended rational challenges to it.
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