Mark D. White

Today the Supreme Court of the United States—now, thanks to Justice Scalia's dissent in yesterday's King v Burwell dissent, "officially" known as SCOTUS—declared marriage to be a right for all, covering both same-sex and opposite-sex couples. In his majority opinion, Justice Kennedy affirms same-sex marriage to be a matter of rights and dignity; Chief Justice Roberts, in his dissent, regards it as a matter of policy best left to the voters.

I agree with Kennedy, as I explain at Psychology Today. For more details on the opinions themselves (found here), I recommend Orin Kerr's summary at The Volokh Conspiracy.

Mark D. White

In his New York Times column today, David Brooks hails the movement for same-sex marriage as an admirable step away from personal freedom and autonomy:

...last week saw a setback for the forces of maximum freedom. A representative of millions of gays and lesbians went to the Supreme Court and asked the court to help put limits on their own freedom of choice. They asked for marriage.       

Marriage is one of those institutions — along with religion and military service — that restricts freedom. Marriage is about making a commitment that binds you for decades to come. It narrows your options on how you will spend your time, money and attention.

Consistent with his views of individualism (which I've critiqued here and here), Mr. Brooks seems to have an overly simplistic view of freedom and autonomy, such as when he writes that "far from being baffled by this attempt to use state power to restrict individual choice, most Americans seem to be applauding it." Certainly, by marrying, people do give up some basic liberties to each other, but this is a choice freely made—and it is a choice to which gays and lesbians want access just as straights have long enjoyed. In other words, gays and lesbians want the higher-level freedom to restrict their own lower-level freedom (recalling Harry Frankfurt's conception of freedom of the will in which persons constrain their first-order desires based on their second-order ones). Marriage doesn't represent a diminuition of freedom: it is a higher level of it.

He goes on to say, "Americans may no longer have a vocabulary to explain why freedom should sometimes be constricted, but they like it when they see people trying to do it." Perhaps if Mr. Brooks expanded his conception of individual freedom to encompass the choice to constrain yourself, he'd see that Americans understand it extremely well—when that choice is ours. We choose to marry (or form long-lasting relationships), take jobs, enter into contracts, enroll in college, and make all types of commitments to family, friends, and community, all of which restrict our personal freedom. But they are choices that we freely make for any number of reasons, some out of self-interest and others out of a broader morality, and we welcome the opportunity to make these choices—a choice, in the case of marriage, that not all Americans currently enjoy.

The conclusion of Mr. Brooks' column conflates individual choices to make commitments with social pressure to do so:

And, who knows, maybe we’ll see other spheres in life where restraints are placed on maximum personal choice. Maybe there will be sumptuary codes that will make lavish spending and C.E.O. salaries unseemly. Maybe there will be social codes so that people understand that the act of creating a child includes a lifetime commitment to give him or her an organized home. Maybe voters will restrain their appetite for their grandchildren’s money. Maybe more straight people will marry.       

The proponents of same-sex marriage used the language of equality and rights in promoting their cause, because that is the language we have floating around. But, if it wins, same-sex marriage will be a victory for the good life, which is about living in a society that induces you to narrow your choices and embrace your obligations.

My idea of the good life derives from Immanuel Kant's kingdom of ends, a world in which each of us embraces obligations to each other while we pursue our own interests, narrowing our choices as each of us chooses, not as society "induces" us. Mr. Brooks' alternate vision reflects his limited view of individualism as base self-interest in which moral imperatives must be imposed by outside, not necessarily by government but through societal pressure. The question, of course, remains why individuals should trust the wisdom of the crowd for their moral guidance.

Mark D. White

Just announced: the Supreme Court will decide the constitutionality of the federal Defense of Marriage Act and California's Proposition 8. See the live blog at SCOTUSblog (or upcoming analysis soon, I'm sure) for more.

Needless to say, I'm thrilled about this, given a) my support of same-sex marriage and b) my firm position that the controversy over same-sex marriage should be settled by the courts (see earlier posts such as this one for more).

Mark D. White

Lyle Denniston at SCOTUSblog has begun a four-part series on the impending same-sex marriage controversy at the Supreme Court. From the introduction to his first post (discussing the role that constitutional standards will play in any such case):

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.   At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue.  Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law.  One petition deals with a similar state law adopted in 2009 in Arizona for state employees.  And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state.  Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws.  Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.

(Thanks to Robert Loerzel and Felicia Yonter on Twitter from the link.)

Mark D. White

My stomach turns at the news that Uganda is set to pass a law that imposes life sentences and sometimes the death sentence for homosexual acts:

KAMPALA, Uganda (AP) — Uganda's anti-gay bill will be passed before the end of 2012 despite international criticism of the draft legislation, the speaker of the country's parliament said Monday, insisting it is what most Ugandans want.

Speaker Rebecca Kadaga told The Associated Press that the bill, which originally mandated death for some gay acts, will become law this year.

Ugandans "are demanding it," she said, reiterating a promise she made before a meeting on Friday of anti-gay activists who spoke of "the serious threat" posed by homosexuals to Uganda's children. Some Christian clerics at the meeting in the Ugandan capital, Kampala, asked the speaker to pass the law as "a Christmas gift."

This is John Stuart Mill's tyranny of the majority at its ugliest: a majority of citizens using the machinery of government to negate the rights of the minority.

Many Americans rejoiced at the success of same-sex marriage referenda in last Tuesday's election, and certainly there was tremendous cause for celebration. But why should gays and lesbians have had to wait for a majority of the electorate to "come around" and "grant" same-sex couples the same access to civil marriage that straight people have? Before this election all same-sex marriage referenda were voted down--a far cry from what Uganda is doing, to be sure, but the spirit is the same, a majority deciding what rights a minority may have.

As I've argued several times on this blog (here and here, for instance), it is a poor validation of basic human rights to have the majority of the electorate vote for them (as encouraging as it may be in reflecting changing attitudes). Gays and lesbians shouldn't have to have their basic rights be "granted" to them by the electorate. They should be recognized as having existed all along by the only institution that can do that: the courts.

The court in Brown v. Board of Education didn't say that "now" segregation is wrong--it said it had always been wrong. The court in Loving v. Virginia didn't say that "now" laws against mixed-race marriage are wrong--it said they have always been wrong. And when the Supreme Court decides that same-sex couple should have the right to marry, they will not say that "now" same-sex couples have that right, but that they have always had that right--and it just took a while for the law to catch up. 

Mark D. White

I've read an enormous amount of what's been written on the Chick-fil-A controversy the last couple weeks, although I'm sure I haven't scratched the surface. But I was fascinated by Will Wilkinson's recent post at The Economist's Democracy in America blog, titled "Feathers Flying," in which he casts the fast food company's stance against same-sex marriage as an example of corporate social responsibility (CSR), though not the typical social justice concerns usually associated with CSR.

It's my view that this sort of skirmish in the culture wars is an inevitable consequence of trends in "ethical consumption" and "corporate social responsibility". Conservatives sceptical of the corporate social responsibility (CSR) movement have often charged that CSR is a stalking horse for liberal causes that have failed to get traction through ordinary political channels. This charge finds some support, I think, in the fact that few in the media seem to see Chick-fil-A's Christian-influenced culture and business practices as an example of CSR, though obviously it is. Doesn't the demand that corporations act responsibly in the interests of society, in ways other than profit-seeking, directly imply that corporate leaders who find same-sex marriage socially irresponsible should do something or other to discourage it?

Rather than comment on Chick-fil-A's position itself, I want to point out Mr. Wilkinson's perceptive comments regarding the politicization of the marketplace itself:

Matters of moral truth aside, what's the difference between buying a little social justice with your coffee and buying a little Christian traditionalism with your chicken? There is no difference. Which speaks to my proposition that CSR, when married to norms of ethical consumption, will inevitably incite bouts of culture-war strife. CSR with honest moral content, as opposed to anodyne public-relations campaigns about "values", is a recipe for the politicisation of production and sales. But if we also promote politicised consumption, we're asking consumers to punish companies whose ideas about social responsibility clash with our own.

Those opposed to a particular company's moral or political position may consider their actions to exemplify corporate social irresponsibility (or worse) rather than just a different type of CSR. The issue for ethical consumption then becomes not just a matter of choosing companies who actively support the "right" causes rather than those who don't, but more important, staying away or boycotting companies that support the "wrong" ones. (This is not new: for examples, labor union members have long refused to patronize nonunion businesses, whether out of solidariry or some other principle.)

Wilkinson's proposed remedy is elegant, and on first blush seems to make perfect sense:

I'd suggest the best arena for moral disagreement is not the marketplace, but our intellectual and democratic institutions. We hash out our disagreements, as best we can, in public deliberation. The outcome of this deliberation becomes input to official policymaking, which in turn determines the rules of the game for business. Businesses then seek profits within the scope of those rules (and the consensus rules of common decency), and consumers buy the products that best satisfy their preferences.

That would be the ideal, I agree. In unpublished work on CSR, I draw a distinction between internal and external actions: internal CSR would cover the operations of the business itself, such as treatment of employees and environmental production methods, while external CSR involves actions not directly related to the business, such as charitable giving--or political positions. My conclusion based on this distinction can be considered a restatement of Milton Friedman's oft-caricatured position that business should focus on maximizing returns to owners within the legal and ethical standards of their industry. The italicized phrase refers to the importance of internal CSR--which still leaves room for controversy, such as whether benefits can be extended to same-sex partners or the extent of environmental safeguards--and cautions against external CSR, either because profits can be devoted to social or political causes by the owners just as well as by the company, or because the business wants to avoid endorsing a controversial position and politicizing its product.

I think that corresponds fairly well to what Wilkinson recommends, but I fear the horse has left the barn on that one. CSR and ethical consumption together comprise a vicious cycle that we will find it very difficult to extricate ourselves from at this point. Consumers have adopted the mindset of making a moral statement with their purchases--with good intentions--and they expect businesses or business leaders to reveal their positions. Businesses are more than happy to comply, sincerely or otherwise, even at the risk of alienating a segment of their customer base. Even companies that remain neutral on heated social issues may be accused of "if you're not with us you're against us"--and certainly with some issues, there is no neutral position. A company can refuse to take a public stand on same-sex marriage, but they either provide same-sex benefits or they don't.

I'll finish--as I often do--with Kant. Often caricatured himself as a rigid demanding moralist, he ridiculed as "fantastically virtuous" any person "who allows nothing to be morally indifferent and strews all his steps with duties, as with mantraps... Fantastic virtue is a concern with petty details which... would turn the government of virtue into tyranny” (Metaphysics of Morals, 409). We can take his comments one step farther and argue that, given our limited attention, the more attention we pay to "petty details," the less we pay to more serious issues or more effective ways to deal with them. Equality for gays and lesbians is no petty detail, of course, but no matter which side you're on, there must be a better way of supporting your position than choosing whether to eat a chicken sandwich.

Jonathan B. Wight

President Obama today endorsed same-sex marriage. I was surprised. He has equivocated for so long, has squirmed and slithered on this and other issues, I was expecting him to hide out during his re-election to avoid offending anyone.

Obama may have made the political calculation that coming out will win him some swing states, despite North Carolina's vote this week to ban same-sex unions. The overall evidence is mixed:

[A]ccording to the pollster Andrew Kohut of the nonpartisan Pew Research Center, a plurality of swing voters favors same-sex marriage, 47 percent to 39 percent, and outside the South the margin widens to a majority of 53 percent in favor and 35 percent opposed; in the South, a plurality of 48 percent opposes same-sex marriage.

The biological, sociological, and psychological evidence is not as mixed, however. Being homosexual or heterosexual is not a choice. No one had to tell me I was attracted to the opposite sex: I knew at age 5 when I instinctively went for the girly magazines in Washington D.C.'s Union Station. Of course, I didn't have any money to buy and my parents quickly shooed me away. I presume others had similar experiences.

The decline of marriage as an institution is a tragic thing, especially for children. There is no evidence I know of that gays had anything to do with this. If gay people join in long term committed relationships this makes society more stable for children.

Government should not be in the marriage business, anyway. Government should provide legal unions that protect people's civil rights. Churches can decide what criteria they use to create a marriage. Let a thousand flowers bloom.

[Photo credit: Covent Garden flower stall, 2008, JBW]

Mark D. White

As this New York Times article celebrates, the U.S. military's "don't ask don't tell" policy is officially over. Military personnel who are gay or lesbian no longer have to suppress their identity and compromise their cherished virtue of honesty to serve their country.

(H/T: Erica Greider.)

Mark D. White

From today's Albany TImes Union:

CONCORD, N.H. (AP) — More than 1,500 married, New Hampshire gay couples could be placed into a classification all their own if lawmakers succeed next year in repealing the state's two-year-old law legalizing same-sex unions.

Legislation to repeal gay marriage is one of the highly charged issues left over from the just-completed legislative session that must be acted on early next year. The two proposed repeal bills would not affect gay marriages before repeal, but would stop new same-sex marriages.

This absurd legislative ping-pong game is what happens when basic human rights are left up to the legislative process, as I argued here.

Mark D. White

Last nigt New York Governor Andrew Cuomo signed a bill allowing same-sex marriage after a lengthy process of legislative tomfoolery. Those who have read my previous posts and work on the issue will not be surprised to hear that I am very happy about the result and less than pleased with the process.

Unlike most, I think issues such as same-sex marriage, which at their core are issues of human rights and dignity, are matters best dealt with by the courts, not the legislature--a small quibble, perhaps, seeing that the just result was achieved, but an important one nonetheless. Just in pragmatic terms, legislation can be overturned much more easily than court decisions. But on principled terms, human rights should never be put to a vote--they should be affirmed by the courts, our designed guardians of principle, rather than a deliberative political body.

One quote from the news report above (from The New York Times) may help make my point:

With his position still undeclared, Senator Mark J. Grisanti, a Republican from Buffalo who had sought office promising to oppose same-sex marriage, told his colleagues he had agonized for months before concluding he had been wrong.

“I apologize for those who feel offended,” Mr. Grisanti said, adding, “I cannot deny a person, a human being, a taxpayer, a worker, the people of my district and across this state, the State of New York, and those people who make this the great state that it is the same rights that I have with my wife.”

Very inspiring, and it helps make a case that popular affirmation of same-sex marriage may be more satisfying symbolically (especially when it involves people changing their minds and supporting it). But it also points out that the people of New York state left it to its state legislature to decide whether gays and lesbians have the same rights that straights have with their spouses. And as we have seen over the weeks this has played out, the successful vote was never assured until last night--a dreadfully uncertain and contingent method for asserting equal human rights and dignity for all.