1 Is SameSex Marriage Wrong II 2 David

1 Is Same-Sex Marriage Wrong? II

2 David Boonin: “Same-Sex Marriage and the Argument from Public Disagreement” Boonin’s Central Argument Jordan’s argument that the dilemma of same-sex marriage can ethically be solved by accommodation ultimately fails on several grounds because Jordan conflates the ethical issue of same-sex marriage with that of homosexual acts.

3 Recall Jordan’s Argument P 1 If (a) there is public dilemma about X and (b) resolution of the dilemma by accommodation is possible and (c) there is no overriding reason to prefer resolution of the dilemma by declaration, then (d) the state should resolve the public dilemma about X by accommodation. P 2 There is a public dilemma about same-sex marriage. P 3 It is possible for the State to resolve the dilemma by accommodation if it refuses to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults. ) P 4 It is not possible for the State to resolve the dilemma by accommodation if it sanctions same-sex marriage (since that amounts to resolving the dilemma by declaration and leaves no room for accommodation). P 5 There is no overriding reason for the State to resolve the dilemma by declaration. C The State should refuse to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults).

4 Analyzing Jordan’s Argument P 2 There is a public dilemma about same-sex marriage. What does P 2 mean? • Jordan defines a public dilemma as a special case of a moral impasse (a situation where people “hold genuinely conflicting beliefs regarding the moral status of x. ”) • So, in the case of the public dilemma about same-sex marriage, what does x stand for?

5 Analyzing Jordan’s Argument P 2 There is a public dilemma about same-sex marriage. v x can stand for acts of homosexual behavior, or it can stand for acts of participating in a same-sex marriage. v The former concerns the moral permissibility of certain forms of sexual behavior, regardless if the people involved are predominantly heterosexual or homosexual in orientation. v The latter concerns the moral permissibility of granting certain forms of social recognition and public benefits to samesex couples, regardless of whether or not they engage in such (or any) sexual behavior.

6 Is the Dilemma about Same-Sex Marriage? P 2 P 3 It There is possible for the is a public State to resolve dilemma aboutthe dilemma by same-sex marriage. accommodation if it refuses to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults. ) • It seems the most natural interpretation that the conflicting beliefs in P 2’s public dilemma are beliefs about the moral status of acts of participating in a same-sex marriage. • If this is what is meant by P 2, then P 3 and P 4 are false. • If we conflate the two possibilities of x into “the” dispute over homosexuality, P 3 seems plausible: each side gets some of what it wants, and neither side gets all of what it wants.

7 Is the Dilemma about Same-Sex Marriage? P 3 It is possible for the State to resolve the dilemma by accommodation if it refuses to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults. ) • But if the conflict is over same-sex marriage in particular, this is no accommodation at all: it is simply a declaration that one side of the debate is entirely correct, and the other side entirely incorrect. • Compare with pornography: The equivalent move would be to join together the distinct (but related) issues as to whether the government should fund the arts, and whether it should ban violent pornography, announce that the government should permit violent pornography but not subsidize it, and declare the debate settled by accommodation to both sides.

8 Is the Dilemma about Same-Sex Marriage? P 4 P 3 It is possible not possible for the for State the State to resolve the dilemma byby accommodation if it sanctions refuses tosame-sex sanction marriage same-sex(since marriage that amounts (provided to resolving that it the permits dilemma private by homosexual declaration and acts between leaves no consenting room for accommodation). adults. ) • This would not be a resolution by accommodation of one dilemma, but a resolution by declaration of two dilemmas. • P 4 is false for similar reasons as P 3. • If the dilemma is over same-sex marriage and not same-sex sex, the state could sanction same-sex marriage, but make it more difficult to obtain a same-sex marriage license. • However, what the defenders of same-sex marriage demand is that same-sex marriage be on equal footing with heterosexual marriage, and opponents of same-sex marriage demand that there be no such thing as same-sex marriage.

9 Is the Dilemma about Same-Sex Marriage? P 4 It is not possible for the State to resolve the dilemma by accommodation if it sanctions same-sex marriage (since that amounts to resolving the dilemma by declaration and leaves no room for accommodation). • Of course, this is precisely what Jordan means by resolution by accommodation – no one side gets everything it wants, but both sides get something they want: “[T]he state should find a way to allow those who wish to engage in the disputed behavior to engage in it while at the same time expressing society’s disapproval of or at least lack of approval of the behavior in question. ” (368)

10 Is the Dilemma about Homosexual Behavior? P 2 P 3 It There is possible for the is a public State to resolve dilemma aboutthe dilemma by same-sex marriage. accommodation if it refuses to sanction same-sex marriage (provided that it permits private homosexual acts between consenting adults. ) • Jordan’s own evidence seems to indicate that the conflicting beliefs in P 2’s public dilemma are beliefs about the moral status of acts of homosexual behavior. • But if this is the case, then P 3 and P 4 are again false, for different but parallel reasons. • P 3 would be false: If the state refuses to sanction same-sex marriage, but permits private homosexual acts between consenting adults, it does not thereby resolve the dilemma by accommodation; rather, it declares one side correct and leaves no accommodation for the other.

11 Is the Dilemma about Same-Sex Marriage? P 4 It is not possible for the State to resolve the dilemma by accommodation if it sanctions same-sex marriage (since that amounts to resolving the dilemma by declaration and leaves no room for accommodation). • P 4 would also be false: The state could sanction same-sex behavior in a way that allows for accommodation, say, by recognizing both gay and straight marriages, but making it illegal to have homosexual intercourse outside of homosexual marriage. • Either way we interpret the public dilemma, Jordan’s argument is proven unsound.

12 The Mixed-Race Marriage Objection (cont’d) • Jordan raises a possible objection to his view: that if the state refuses to sanction same-sex marriage on the grounds of moral impasse, then it should also refuse to sanction mixed-race marriage on the same ground. But the claim that the state should refuse to sanction mixed-race marriage is surely intolerable, and so, by reduction ad absurdum, Jordan’s argument fails. • Jordan provides three responses to this objection.

13 The Mixed-Race Marriage Objection (cont’d) Jordan’s First Response The issue of mixed-race marriages is not a public dilemma— it may have been at one time, but it isn’t any longer. • Problem: It doesn’t seem true that mixed-race marriage is no longer publicly controversial: in many communities in the South, there remains substantial opposition to interracial dating, let alone interracial marriage.

14 The Mixed-Race Marriage Objection (cont’d) Jordan’s Second Response Even if mixed-race marriage is a public dilemma, it is one that allows for resolution by declaration – “state protection from racial discrimination is a reason sufficient for a resolution via declaration” – where the same is not true for same-sex marriage. • Problem: A law banning mixed-race marriage would not discriminate against people on racial grounds—individuals of each race would be free to marry another individual of that race. No one racial group would be discriminated against by such a law.

15 The Mixed-Race Marriage Objection (cont’d) • Conversely, a law banning same-sex marriage would discriminate on grounds of sexual orientation: it would allow a heterosexual man to marry any member of the sex he is attracted to, while a homosexual man can marry any member of a sex he is not attracted to. At the same time, a heterosexual man is forbidden to marry any member of the sex he is not attracted to, and the homosexual man is forbidden from marrying any member of the sex he is attracted to. • The group adversely affected would be solely homosexuals. • If anything, Jordan has inadvertently shown a reason that the issue of same-sex marriage should be resolved by declaration which does not apply to the issue of mixed-race marriage.

16 The Mixed-Race Marriage Objection (cont’d) Jordan’s Third Response The grounds for objection in cases of same-sex and mixedrace marriages differs: one concerns racial identity; the other concerns behavior thought morally problematic. Issues based on identity may be solved by declaration, but not issues based on behavior. • Problem: Those who object to mixed-race marriage do not do so because of the identity of the individuals. That is, they do not object to members of any given race marrying members of their own race – just with marriages across races. • As such, it is not the individuals’ identity that they object to; it is the act that they perform (the act of weakening the purity of their own race, or of violating an obligation to put one’s own community first).