Marriage and emotivism

Andrew Sullivan has a good point about gay marriage:

But the question Ben does not answer is this: on what grounds should we call a same-sex marriage a civil union and not a civil marriage? What does it mean to have a different name? The California court went to some length to answer this question and could not come up with an answer that could square with the strong assumption of civil equality in California's constitution. It's not merely descriptive: we could call the two institutions "gay marriage" and "straight marriage" if we wanted to. But one is called a "domestic partnership" and one is called a "marriage". Why?

Andrew goes on to point out:

It really does come down to this. Are gay relationships as good as straight ones? Do they deserve the same dignity and respect and support? If you believe they do, there is no logical reason to deny the term civil marriage.

I find it hard to see how this point is convincingly answerable within the secular philosophical framework in which our courts operate. In its majority opinion, the state of California found that granting all the rights and duties of marriage to same-sex couples without calling it marriage amounts to unconstitutional discrimination. In other words, they said that "civil unions" or "domestic partnerships," which has been the political compromise over gay marriage, is a distinction without a difference, and amounts to "separate but equal."

Now, I happen to believe the court's decision was wrong, and that there is no constitutional right for gays to marry (as distinct from a desire to do so, which). As a matter of moral philosophy, I don't believe that any relationship that falls outside the bounds of traditional marriage as I have defined it above is equal to traditional marriage. That is not to say they are "bad," only that they are not the same -- and I believe society has substantial practical interests in privileging traditional marriage, and strengthening it as a social institution.

Having said that, it is obvious, or should be, that many, and probably most, heterosexuals long ago ceased to see marriage as referring to anything definitive beyond a ratification in law of the feelings a man and a woman have for each other. This is not to say that this or that couple doesn't believe that their marriage has objective metaphysical meaning, only that as a matter of law in a secular, pluralist democracy, marriage is essentially emotivist. It should be seen essentially in emotional terms (e.g., "Who are you to tell me my marriage isn't as good as yours? We love each other and are committed to each other the same as you and your spouse.")

MacIntyre anticipated all this in "After Virtue." Our culture has lost a commonly held teleological view of morality, and (unsurprisingly) a teleological view of marriage. Marriage is only what we agree it is; it has no commonly recognized metaphysical meaning. Thus when a court declares that marriage is not what everybody had heretofore thought it was, but actually has a radically different meaning under law, the fact that this is not met with widespread, forceful objection shows that the longstanding traditional view of marriage has fatally eroded. Though the California court is getting out ahead of the public to a certain degree, it is undeniable that those justices are simply acknowledging a moral understanding that the public already generally accepts, though many, perhaps most, people have not thought through its implications. Andrew is quite right to say that if the state is willing to grant marriage in name only to same sex couples, the only possible moral (as distinct from prudential or political) justification for denying marriage itself to same-sex couples is the belief that their union is in some sense inferior. Most people, even, I'd say, most who believe that same-sex unions are inferior, cannot offer a reason or reasons for that conclusion that persuades most people in this society. "It's just wrong, that's all," is no longer persuasive.

Which brings us to people who celebrate the court decision as just. I have not seen a satisfactory answer as to why, based on the court's finding that individual autonomy is the basis for extending full marriage rights to same-sex couples, polygamous marriages can be forbidden. Those who argue that gay marriage is a right -- which is something inalienable, that cannot be regulated by the law -- will find before too long that they have no firm moral grounds for rejecting polygamist claims. The California court ruled:

"The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage."

This does not cohere. The court cites tradition to justify overturning tradition. Tradition clearly does not bind the court's decision. The court implicitly finds a right to marry one other person, but why stop at one? I'm not asking rhetorically. A friend who supports the decision says polygamy isn't at issue, because, "We've always thought marriage is something between two people." Well, yes, but for millenia in the West we've seen marriage as between one man and one woman. That understanding has been lost within two generations. There is no longer any fixed meaning of marriage in our culture or in our law. The court here is asserting that marriage is between two consenting adults, the gender of which doesn't matter -- but on what authority does it make that radical claim? It is only that: an assertion, with little to ground it. Do not be surprised when the polygamists go to court pressing their claims, and, "We've always done it that way" proves no defense against the relentless progress of the desires and wills of autonomous individuals in knocking down the boundaries in a morally disordered, relativist and emotivist culture.

Finally, a point from MacIntyre worth contemplating:

Marx was fundamentally right in seeing conflict and not consensus at the heart of modern social structure. It is not just that we live too much by a variety and multiplicity of fragmented concepts it is that these are used at one and the same time to express rival an incompatible social ideas an policies and to furnish us with a pluralist political rhetoric whose function is to conceal the depth of our conflicts.