IGF CultureWatch

Princeton natural-law theorist Robert George wrote recently at the First Things website that

For years, critics of the idea of same-sex 'marriage' have made the point that accepting the proposition that two persons of the same sex can marry each other entails abandoning any principled basis for understanding marriage as the union of two and only two persons. So far as I am aware, our opponents have made no serious effort to answer or rebut this point.

I found this last claim irritating, mainly because I'm one of the people who has answered the point-not only in several columns, but also in the academic journal Ethics, with which George (a professor of jurisprudence) is surely acquainted. Indeed, when I was working on that article, I corresponded with George about it, since it discusses his work at some length.

Fellow gay-rights advocate Jonathan Rauch quickly challenged George's absurd claim at the online Independent Gay Forum, prompting a rejoinder from George:

But the point that is most relevant here is that Rauch's arguments [against polygamy] are about social consequences and costs, they are not about the principles that constitute marriage as such. Rauch and the authors he cites (John Corvino, Dale Carpenter, and Paul Varnell) do not make a serious effort to show that, as a matter of principle, marriage is an exclusive union of the sort that is incompatible with polygamy (much less polyamory). Corvino doesn't even join Rauch in asserting that there is anything wrong with polygamy-much less that polygamy is incompatible in principle with true marriage. Putting it in the hypothetical, he says, "If there's a good argument against polygamy, it's likely to be a fairly complex public-policy argument having to do with marriage patterns, sexism, economics, and the like."

Time for some clarification.

First, George is right that I am agnostic on the question of whether polygamy is always and everywhere a bad idea. While I find Rauch's arguments on the typical social costs of polygamy persuasive, I remain open to the possibility that it could be structured in such a way to avoid those costs.

But the issue is not what I (or any other gay-rights advocate) happens to believe. The issue is whether being a gay-rights advocate inherently "entails abandoning any principled basis for understanding marriage as the union of two and only two persons," as George puts it. And the answer to that question is obviously "no." Rauch is a clear counterexample: he's a gay-rights advocate who adduces general moral principles to oppose polygamy.

Why does George claim otherwise? The answer has to do with his confusion about what it means to have a "principled" objection to something. More specifically, he confuses having "a principled objection" with having "an objection in principle." The difference is subtle but important. To have a principled objection is to base one's opposition on principles (rather than simply to assert it arbitrarily). Rauch surely does this.

By contrast, to have an "objection in principle" is to object to a thing in itself, not on the basis of any extrinsic reason. Rauch doesn't object to polygamy "in principle"; he objects to it for being harmful, and if it weren't harmful he presumably wouldn't object to it.

It's worth noting that relatively few things are wrong "in principle." Throwing knives at people isn't wrong "in principle": it's wrong because it's harmful, and if it weren't harmful (say, because humans had metal exoskeletons), it wouldn't be wrong. Of course, the world would have to be quite different than it is for that to be the case. Similarly, the world would have to be quite different than it is for polygamy not to have serious social costs. But public-policy arguments are quite rightly based on the actual world, not on bizarre hypotheticals.

This distinction is important, because once one moves from "no objection in principle" to "no principled objection," it's a short slide to "no serious objection"-and thus a bad misrepresentation of the position of mainstream gay-rights advocates.

So, to be clear: Rauch, Carpenter, Varnell, and others have a principled objection to polygamy, but not an objection in principle. But here's the kicker: neither does George. For George's natural-law position is based on the requirement that sex be "of the procreative kind." And polygamy is very much of the procreative kind. Even if one accepts George's nebulous "two-in-one-flesh union" requirement-which somehow allows permits sterile heterosexual couples to have sex but prohibits homosexual couples from doing so-nothing in that requirement precludes multiple iterations (and thus polygamy). If George wants to argue that polygamy is wrong, he's going to have to appeal to the same sort of extrinsic principles that Rauch invokes. Either that, or he's going to have to just baldly assert that marriage is two-person, period. If such ad hoc assertions don't count as abandoning "principled" argument, I'm not sure what does.

George has claimed before that "the intrinsic value of (opposite sex) marriage…has to be grasped in noninferential acts of understanding." In other words, you can't argue for it: you either get it or you don't. My guess is that he'd say the same thing about the two-person requirement. But two can play at that game. For there's nothing to prevent Rauch (or Carpenter or Varnell or me) from saying, "Hey-I don't get the opposite sex part, but I do get the two-person part. There's my principled reason for opposing polygamy."

Funny how it's no more convincing when we do it than when George does.

About a month ago a group of self-described "LGBT and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers" issued a manifesto titled "Beyond Same-Sex Marriage" in which they demanded legal "recognition of diverse kinds of partnerships, households, kinship relationships and families" with "access to a flexible set of economic benefits and options regardless of sexual orientation, race, gender/gender identity, class, or citizenship status."

The signers consisted mostly of "no-names"--people you've never heard of--along with a couple of handfuls of known gay and lesbian (mostly lesbian) academics, activists, former activists, and hangers-on. Some of the signers are heterosexual; most seem to be long-term advocates of the post-Marxian socialist and deconstructionist left.

As witness: The manifesto avoids gay/lesbian issues but is replete with venerable left-wing demands--e.g., an end of funding of "militarism, policing, and prison construction." And it emphasizes "women's issues" such as more money for "decent housing, childcare, healthcare and reproductive services," etc.

All this is not so much beyond same-sex marriage, it is in a different universe entirely. All gay marriage proponents want is a change in one law to allow them equal treatment. Manifesto signers want free goodies for everybody, subsidized by taxpayers. In other words, this is nothing but the economic and cultural left's attempt to link itself to the gay marriage movement.

This little exercise in socio-economic splenetics would have sunk without a trace except that social conservatives publicized it widely as proving their contention that gay marriage was the first step in a scheme to undermine and destroy marriage. Polygamy is just around the corner, they shouted. And, they added triumphantly, the gay marriage movement has finally come out of the closet and admitted what its real goal is.

Oh, blarney! None of this has been secret, none of it is new from the far left and it offers no support to gay marriage. In fact, vigorous opposition to marriage--a "bourgeois" institution denounced by Marx as legalized prostitution--has long been a mainstay of the Marxian and feminist left. They have routinely denounced marriage, any marriage, as an oppressive "patriarchal" institution, although no one bothers to explain exactly what is patriarchal about the marriage of two men or two women.

For instance, manifesto signer Paula Ettelbrick has written and debated in opposition to marriage--and specifically gay marriage--for more than two decades. For her to sign a manifesto that indicates even openness to gay marriage, if only as a tactical feint, seems disingenuous. I suspect the same is true for many other signers. If I didn't know better I would think the signers were trying to disrupt and discredit the gay marriage movement. Come to think of it, I don't know better.

Despite this well-known background, right wing polemicists eagerly welcomed the manifesto as proof that gay marriage advocates were finally being candid about their "real" intention to destroy marriage. It is, in fact, an indication of the utter poverty of the argument against same-sex marriage that instead of arguing against it directly, the right wing has to immediately change the subject and point to other familial configurations as social dangers--polygamy, legalized incest, whatever.

Bluntly put, there are no cogent arguments against gay marriage. One of the most prolific opponents of gay marriage, Princeton professor Robert George, after repeatedly trying to develop and present just such arguments, has more or less admitted that. In a co-authored article with one Gerard Bradley, George states that male-female marriage has an "intrinsic value" that "cannot, strictly speaking, be demonstrated" and that "if the intrinsic value of (opposite sex) marriage ... is to be affirmed it has to be grasped in noninferential acts of understanding."

That is about as close to acknowledging defeat as you can get without explicitly saying so. What if George Wallace had said that the superiority of the white race could not be demonstrated but could be "grasped in noninferential acts of understanding"? Certainly there was a sizable constituency for just such a view, but undemonstrable "noninferential acts of understanding" are a poor basis for creating public policy in a secular civil society.

Then too, Robert George and his colleagues have never explained very well what it is about their own requirement of a male-female polarity for marriage that excludes polygamy. It is hard not to suspect that George keeps harping on polygamy as an imagined consequence of same-sex marriage to distract attention from the far more obvious opening to polygamy his own principle entails. I'm sure many fine polygamous Muslims would agree.

A quick test of your commitment to the First Amendment is to ask yourself whether you support the American Civil Liberties Union in its lawsuit defending the right of the anti-gay Phelps clan to conduct its hateful demonstrations outside the funerals of American soldiers killed in Iraq. Many will answer no, saying something like, "I'm all for freedom of speech, but it has limits."

The same sentiment was widely uttered earlier this year after a Danish newspaper printed cartoons of the prophet Muhammad. Many commentators seriously asserted that no one has a right to offend other people's beliefs. Similar views are often expressed about protesters burning the American flag.

In the current session of the Washington D.C. city council, a bill to protect adolescents and children from the corrupting influence of violent or obscene video games was co-introduced by every council member but one. Its sponsors, including the openly gay chair of the committee with jurisdiction, were unmoved by the lack of evidence that viewing videos causes violent behavior, or by the fact that similar censorship laws elsewhere have consistently been overturned as unconstitutional. The lone dissenting council member, unsurprisingly, was also that body's leading civil libertarian. Fortunately, the council chair, now running for mayor, has heeded the city's attorney general on the bill's dubious constitutionality and withdrawn her support.

Recently, a draft rulemaking was published for implementation of the D.C. Human Rights Act's prohibition against discrimination based on "gender identity or expression." The local ACLU chapter and the Gay and Lesbian Activists Alliance (of which I am a member) raised First Amendment concerns about a provision declaring the use of certain words in the workplace as presumptive evidence of discrimination. ACLU cited the Supreme Court in Clark County School Dist. v. Breeden, which stated that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Rather than consider that perhaps the regulations should be tightened to withstand court scrutiny, the leader of the transgender activists expressed disappointment that anyone would raise First Amendment concerns, because "the First Amendment has often been used against us." Here was a member of a persecuted minority treating the keystone of American civil liberties as a hindrance.

In 2000, the ACLU was widely attacked for defending the free speech rights of the North American Man/Boy Love Association (NAMBLA). In response to the criticism, an ACLU statement noted that over the years it had represented such diverse clients as a fundamentalist Christian church, a Santerian church, Oliver North and the National Socialist Party, adding, "In spite of all that, the ACLU has never advocated Christianity, ritual animal sacrifice, trading arms for hostages or genocide. In representing NAMBLA today, our Massachusetts affiliate does not advocate sexual relationships between adults and children.

"What the ACLU does advocate is robust freedom of speech for everyone. The lawsuit involved here, were it to succeed, would strike at the heart of freedom of speech. The case is based on a shocking murder. But the lawsuit says the crime is the responsibility not of those who committed the murder, but of someone who posted vile material on the Internet. The principle is as simple as it is central to true freedom of speech: those who do wrong are responsible for what they do; those who speak about it are not."

I myself took part in the expulsion of NAMBLA and other pedophile groups from the International Lesbian and Gay Association in 1994, and toward that end I wrote a critique of NAMBLA that was printed in several gay papers. I used a copy of the NAMBLA Bulletin as the basis of my critique, which would have been impossible had it been censored by the government. Objectionable opinions are more effectively addressed by rebuttal than concealment.

As members of a minority group, LGBT people should be especially alert to censorship's two-edged sword. In her excellent book, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights, ACLU President Nadine Strossen points out that the anti-pornography campaign led by feminists Catharine MacKinnon and Andrea Dworkin ended up being used against feminists themselves. After Canada, heeding the MacDworkinites, banned pornography that could be considered dehumanizing or degrading to women, Canadian officials began seizing shipments of books to gay and women's bookstores, including works by Dworkin herself.

Freedom of speech means nothing if not the right to offend, short of defamation and other narrowly drawn exceptions. In a 1943 Supreme Court ruling against forcing anyone to say or even stand for the Pledge of Allegiance, Justice Robert Jackson wrote, "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom."

In 1820, Thomas Jefferson wrote of academic freedom at the University of Virginia, "This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow the truth wherever it may lead, nor to tolerate any error so long as reason is free to combat it."

You should not seek liberties for yourself that you would deny to others. Sure, it takes more effort to refute something offensive than simply to say, "Shut up," but if we cannot make our case without silencing our critics, we are in trouble. There is no good substitute for persuasion, and there are no shortcuts to freedom.