Monday, August 16, 2010

Perils Of Defending Tradition

Peter Suderman on same sex marriage:
Same-sex marriage opponents are no doubt failing in part because of their own inability to express a compelling rationale for their position, one that starts with the existing public understanding of what marriage is and should be and then argues that such an understanding is best served by keeping out same-sex couples. But in the long term, I suspect that the fight for equal marriage rights will succeed because millions of Americans will struggle with their intuitive opposition and decide, as I did, that they can not justify it to themselves.

This reminded me of something I heard not too long ago (I think here.) about how explicitly and rationally defending any particular tradition partially destroys it. Tradition derives part or even most of its authority from mystery. Therefore, something like the Polynesian concept of taboo is almost the perfect vehicle for protecting tradition. Things just are taboo. No need to explain. We live, however, in a post-Enlightenment society, and consequently we must rationally and explicitly defend things eventually.


Anonymous said...

Talking about rationally explaining everything - I just had to explain to our daughter what will be happening with her body soon as she's maturing into a young woman.

Good luck with two men who are father and mother trying to deal with that one. They'll probably have to read books to study up, cite flow charts and buy maxi-pads, tampons for the first time in their life. Then they have to deal with their daughter's most natural fear. Yeah, tell me again a gay man who is the wife in his relationship is no different with me.

How's that for a secular argument talking about things that are taboo?

Mrs. P

Withywindle said...

Nonsense; it's that they lack the courage of following through on their arguments. Not only is gay marriage sinful, but so is gay sex, adulterous sex, and premarital sex. But it's too hard to keep our privates buttoned up for five seconds, or tell our children too, and so there is a free pass to everyone to commit every sexual sin in the book. It's not a lack of reasonable arguments, but a lack of virtue.

Andrew Stevens said...

I think there is a problem with reasonable arguments. It's trivial to see the wrongness of adultery which is an offense against honesty and common decency, but much more difficult to see the wrongness of premarital sex and homosexuality. (It is far easier for me to find ways to criticize premarital sex actually, and that horse has completely left the barn if it was ever there to begin with.)

FLG said...


Are you advocating making permarital/extramartial sex illegal? If not, then why same sex marriage?

Anonymous said...

You know what's really interesting about Prop 8 - the polls got it wrong. The last poll taken - Oct. 22 was 47% for 50% against - yet when the votes were tallied it was 52% for and 47% against.

How could the polls be so wrong? Could it be people were afraid to tell a pollster what they really thought but in the privacy of the voting booth - voted their consciences? Or were the polls skewed?

At wikopedia - look at the original poll cited May 2008 and you see something fascinating - it was 54% for and 35% against. That summer saw a very nasty and personal campaign waged against those who supported Prop 8 - yet when the votes came in the "for" only lost 2%. And the "against" picked up all the undecided and drew off the 1-2% of the "for". So it appears the same-sex marriage folks did not make enough of a case as they were not able to change the minds of a majority of Californian voters. The traditional marriage crowd did make a strong case contrary to as the oringial number remained firm. This must mean and is even more contrary to Suderman's claim - a majority of Californian voters still recognize the truth "self-evident" of traditional marriage being the best way for society to rear its future generations.

Now with one (gay) judge overturning the election- we've gone from gay marriage to a much more important issue? Can we actually self-govern anymore? Look at the Judge's ruling on the stay - it literally makes no sense, legally. This ability to self-govern was already in serious doubt with Congress passing through health care against the will of the people.

There's no doubt about it, gay marriage has taken us further down the slippery slope and most interestingly, not in the way anyone imagined.

Mrs. P

Anonymous said...


"Are you advocating making permarital/extramartial sex illegal?"

how did you ever read that in his comments? I thought his were perfectly self-evident...

Mrs. P

Anonymous said...


"I think there is a problem with reasonable arguments. It's trivial to see the wrongness of adultery which is an offense against honesty and common decency,"

Add to that the very real injustice which is most real to the wronged partner, even if society (via no fault divorce laws) no longer wants to recognize this injustice.

"but much more difficult to see the wrongness of premarital sex and homosexuality."

Is it that it's difficult or more uncomfortable (than an adulterous situation) to see it?

Mrs. P

Andrew Stevens said...

No, I really can't see it. Keep in mind, however, that I am a heathen atheist, even though I'm fairly conservative and a staunch defender of objective morality, so I generally have more in common with Thomas Aquinas than Richard Dawkins on moral matters, even if I agree with Dawkins more frequently on metaphysics.

I would, by the way, follow you in eliminating no-fault divorce laws when children are involved and I would happily sign a petition recriminalizing adultery, at least punishing it to the extent that we do any other breach of contract or fraud. I'm also firmly behind punitive divorce settlements in the case of adultery. So yes, FLG, I'm certainly willing to go that far, even if Withywindle is not.

However, while I could easily have defended arguments against pre-marital sex 500 years ago and could probably continue to do so now, it's gotten much more difficult. Give us 100% effective non-abortifacient birth control and the elimination of venereal disease, and I'm left entirely relying on arguments based on human nature. These arguments aren't weak, but they're not tremendously persuasive either.

But even 500 years ago, I'd have been hard pressed to come up with a reason to forbid lifetime monogamous homosexual relationships. I believe the reason why homosexual behavior was attacked so fiercely in the past is because A) homosexual behavior was not confined to homosexuals and B) because of that, it was very rarely monogamous.

Anonymous said...

Roger Scruton is probably one of the most articulate on the subject at hand - excerpted from The Moral Birds and the Bees -Sex and marriage, properly understood 2003

"Marriage in a religious society is a religious event: not a contract between mortals but a vow before the gods. Such a marriage raises the bond between husband and wife from the secular to the sacred sphere, so that whoever breaks the bond commits an act of sacrilege. Civil marriage (as introduced in modern times by the French revolutionaries) has gradually displaced the religious institution, so that marriage is now conducted by the civil authorities, and the change in status is not ontological, like the change from secular to sacred, but legal. In effect marriage has become a contract and has gradually assumed the provisional and temporary character of all merely secular arrangements. This was not the intention of those who invented civil marriage. In taking over and secularizing the institution of marriage the state was hoping to confer fiscal privileges and legal guarantees that would substitute for religious sanctions, and so help to make our commitments durable. It did this from the belief that marriage is vital to the future of society. The state in effect lent its aid to traditional sexual morality, by privileging faithful union between man and wife. And it did so for the very good reason that the future of society depends on this kind of union.

"Now, however, the marriage contract is being enlarged to accommodate the permissive morality. Marriage is ceasing to be a sacrificial union of lovers, in which future generations have a stake, and becoming a transitory agreement between people living now. It is from this perspective that we should view the controversy over gay marriage.

"This is not really a controversy about the rights, freedoms, and life-chances of homosexuals. It is a controversy about the institution of marriage itself. Can marriage retain its privileged place in our moral thinking when so effectively severed from the process of social reproduction? Already the secularization of marriage has led to easy divorce, serial polygamy, and growing insecurity among children. But marriage in its fundamental meaning is a form of lifelong commitment, in which absent generations have a stake. If marriage can be celebrated between homosexual partners, then it will cease entirely to be anything more than a contract of cohabitation, and the legal and fiscal privileges attached to it will seem both unjustified and dangerous, so many openings to litigation. Lovers' quarrels, exalted into marital disputes, will be endowed with an intransigent bitterness, while transient crushes will be foisted on friends and colleagues as institutional facts. In effect, marriage, as the institution through which society offers its endorsement and support to the raising of children, will have ceased to exist.

"The demand to make institutions conform to our desires, rather than our desires to institutions, is one of the great American failings. Thanks to their Puritan heritage, Americans regard hypocrisy as a serious vice, and sin as so lamentable a condition that it must be avoided at all costs. If the only way to avoid sin is to redefine your sins as innocent pastimes, that is what Americans will do. Elsewhere in the world people have learned to extol marriage as the only innocent sexual relation, while nevertheless failing to live up to it. The important thing for normal un-Americans is to keep up appearances, to acknowledge one's own sinfulness, and to be prepared, when the crunch comes, to give up your lover for your spouse. La Rochefoucauld famously described hypocrisy as the tribute that vice pays to virtue. In the sexual mores of today's America, however, hypocrisy is regarded as the only genuine sin. Which is why, in America, sexual virtue gets no tributes at all."

Mrs. P

Anonymous said...

The latest on same-sex marriage opponents failing:

"Sparing the Supreme Court the burden of doing so, a Ninth Circuit motions panel (consisting of two Clinton appointees, Michael Hawkins and Sidney Thomas, and one Reagan appointee, Edward Leavy) has unanimously granted Prop 8 proponents’ (and Imperial County’s) motion for a stay of Judge Walker’s anti-Prop 8 judgment pending appeal. Evidently recognizing that Walker’s effort to alter the status quo was so manifestly beyond the bounds of reasonable judgment, the Ninth Circuit panel stated in one simple sentence that it was granting the motion. It also ordered that the appeal be expedited, with oral argument to take place during the week of December 6.

"This is the third major smackdown that Walker has earned in this case. I’m very much looking forward to a fourth."

--Ed Whelan


Mrs. P

Withywindle said...

FLG: I would have no objections to criminalizing all sex outside of marriage. Certainly if there is no halfway point between that and complete libertinism.

Andrew Stevens said...

All of that quotation from Mr. Scruton is talking about the institution of marriage and its position in society. It is possible to agree with that position and still deny the wrongness of lifelong monagamous homosexual relationships. I have not, in these comments, taken any position on gay marriage. I am arguing that I see no rational justification for Withywindle's claim that gay sex is sinful, assuming it takes place in a lifelong monogamous relationship and, so far, nobody here has offered one.

FLG said...


The only argument that gay sex is sinful that makes sense to me is the idea that sex is for procreation only, but that then opens up a whole can of worms that most people, except devote Catholics, don't want to open.

Andrew Stevens said...

I think that's right, FLG. One would have to take the "only for procreation" line for me to be able to make any sense of it at all. The devout Catholic viewpoint on that is perfectly consistent and it's the only one I know of which can justify prohibitions against all homosexual conduct, even in committed lifelong monagamous relationships. I'm even willing to give them a pass on the fact that they'll allow women over 45 to get married, even though they probably shouldn't, because they are so consistent elsewhere (no masturbation, no birth control, no sodomy, no recognition of divorce, celebration of chastity, etc.). But most proponents of the "gay sex is sinful" line do not have similar courage in their convictions, indicating that they have abandoned the reasoning behind their beliefs and are holding onto it as a relic.

Andrew Stevens said...

Now that I think of it, I probably have to take back my comment on women beyond child-bearing years. The stories of Sarah, mother of Isaac, and Elizabeth, mother of John the Baptist, occurred to me. The Church doesn't want to be in the position of denying God an opportunity to work a miracle.

Anonymous said...


I have to run errands but before maybe you guys could clear up something I'm having trouble with understanding -

"I am arguing that I see no rational justification for Withywindle's claim that gay sex is sinful"

The difficulty - I think-- is the use of the word rational in connection with sinful and justification. Sinful and Justification are words heavy with Christian meaning. But then rational is in there which I take -perhaps wrongly - stemming from reason not faith. Not that I don't believe that Faith and reason are separate.

WW's comments are from the moral/religious perspective. Traditional marriage is a religious/ Christian institution that the State entered itself into -see Roger Scruton- around the time of the French Revolution because it recognized it was good for society. And they wanted to help it along.

Gays have civil unions.

If gays want to participate in marriage then it is they who must make the moral/religious case for same-sex marriages. Not the other way around. So far they have only been able to make the case on taxes and benefits.

Mrs. P

FLG said...

Mrs. P:

But the issue here is that marriage, at least insofar as judges are concerned, is a legal status/institution, not a religious question/institution. Moreover, simply because something was at one time a religious institution does not mean it is still religious.

Indeed, nobody is arguing that Catholic priests need to conduct same sex marriages. This is about a legal status of getting married.

George Pal has mentioned several times on this blog that his preferred means of dealing with this is to get the state out of the marriage business altogether. I, for a variety of reasons including that this nation has a Protestant heritage, believe this isn't going ever to happen.

Nevertheless, for the purposes of the legal argument, whether the state issues licenses and conduct marriages for same sex couples, those who oppose gay marriage cannot resort to religious arguments as a practical matter.

Anonymous said...

I understand this. My issue was both of you were asking for a rational justification as to why gay sex is *sinful*. To me, who is thick as a plank most days - you were asking the impossible. You want an argument without religious reasoning to say why something isn't sinful. That is not fair and since same-sex marriage is all about fairness, let's make it a two-way street, alright?

My other point was - and this post was about those opposed to same sex marriage have lost the argument. They haven't lost it - in fact the religious/ moral argument for same-sex marriage has never been effectively made.

And the secular same-sex argument isn't too strong as the passing of Prop 8 proves.

"But the issue here is that marriage, at least insofar as judges are concerned, is a legal status/institution, not a religious question/institution"

Yes. Marriage is a fundamental right as we've always recognized it as “a social institution with a biological foundation" consisting of one man and one woman.

A same-sex marriage will never ever produce a child on its own. True there are many heterosexual marriages that will never produce a child for a host of different reasons (we were almost one of them and did not resort to engineering just kept at it - literally) but it's not the norm. That's about as rational as one can be.

When we change a fundamental right in this country which is what the recognition of same-sex marriage is doing, the traditions of this country come into play like how the dictionary defined marriage at the time of the 14th Amendment. Dr. Johnson who was about 80 years before the 14th, defined it as:

“act of uniting a man and woman for life."

Judge Walker used rational basis to null and void Prop 8. As my comments clearly show, I'm no legal mind but I have read rational basis is the lowest level to judge something - he also declared with his ruling that moral/religious arguments to be irrational and I've also read rational basis should not be applied to fundamental rights. Don't know why but all of this may be why the 9th circus which today declared it was a legitimate exercise of freedom of speech to lie about winning congressional medals of honor - to stay Judge Wlaker's decision on letting same-sex marriages take place 3 to 0.

Also, we must recall that judge Walker is at odds with our nest Supreme court Justice. Elena Kagan wrote on her questionnaire for Solicitor General

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

Mrs. P

Oh as far as getting the State out of marriage all together argument - I am intrigued. Very intrigued by it.

Anonymous said...

By the way, per:

"But the issue here is that marriage, at least insofar as judges are concerned, is a legal status/institution, not a religious question/institution.


"preferred means of dealing with this is to get the state out of the marriage business altogether. I, for a variety of reasons including that this nation has a Protestant heritage, believe this isn't going ever to happen."

So am I gathering rightly that one of the reasons the state will never get out of marriage is because of our nation's Protestant heritage yet religion is not allowed to come into play with same-sex marriage?

Mrs. P

Anonymous said...

FLG, this by a friend/reader of PP (who owns an award-winning winery if you would like to visit plus he's a lawyer in CA and religious --Episcopalian) is very good:

Politics (the art and skill of government) and religion (the practice of faith in hope of salvation) really have little to do with each other, except that their mixture is usually always combustible. Therefore, people of principle should do their utmost to refrain from mixing them.

A case in point is the current dust-up over same-sex marriages. The problem is that the concept of "marriage" has a mixed heritage. As it emerged in early agrarian societies, it was a matter of contract between families or tribes, as a means of acquiring and keeping valuable land and passing it on to heirs in common. The religious element came only later, when the Church began treating the exchange of vows as a holy sacrament.

One pragmatic solution to the current disagreements would be to return to the original contractual basis for the relationship -- the way it is still done in some western societies. A contract is drawn up between the marrying parties; it is signed and attested to in front of a state-designated official, and the record is entered on society's official books, where it serves as a legal basis for determining questions of parentage and inheritance. And that is all that society, as such, needs to concern itself with. Religious norms or mores would have nothing to do with such civilly-sponsored unions.

Through their legislators, the people could decide what parameters applied to civil unions. They could decide, as they already effectively have in California, that such unions are open to any two persons (but not next of kin), regardless of gender; they could -- since it is all a matter of freedom to contract -- even decide to allow civil unions between three or more persons. The only constraints would be what a majority would back.

Then "marriage", per se, would become a term defined not by the State, but by the churches. Again, each denomination would be free to observe its own traditions and beliefs in performing marriages. However, there would be no State records of any such marriages, and the church's ministers would not be acting as deputies of the State in attesting to their performance. The only records would be those kept by the couples and by the churches themselves.

Thus people joined by the State could have done with the matter then and there, or they could, if they wished, become in addition "married" in a church ceremony -- in any church that will accept them under its criteria. Conversely, people could choose to marry only in a church ceremony, as long as they realized that the State would be under no obligation to regard them as each other's spouse, with all the legal rights and obligations that relationship entails. (Such a church-only marriage might be just the ticket for two elderly persons who did not want to mess up their finances and taxes, but who were also religious enough to want to solemnize their relationship before God and mortal witnesses.)

The details can be worked out -- the main principle is to keep religion and politics completely separate.

Mrs. P

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