Monday, October 27, 2014

Despair, the Hard Work of Theology, and Abraham's Test

I have a son. The other day my wife and I went to his first parent-teacher conference as a middle-schooler. We were told what an awesome kid he is. Afterwards, we got ice cream. Then we headed to the theatre to rehearse for a play he and I are in together.

Ice cream. Shared activities. Involvement in his education. These are things I associate with being a parent. Here are some things I don't associate with being a parent: Tying him down to a rock. Gathering kindling. Preparing to slit his throat and set him on fire.

Those are things I associate with being evil.

A couple of weeks back, Rachel Held Evans wrote an essay on the biblical story of Abraham and Isaac--you know, that story in which (at least on a straightforward reading) God tests Abraham by asking him to kill his son as a sacrificial offering. Evans declared, up front, that she would have failed that test.

So would I. More importantly, I share Evans' wariness of treating a straightforward reading of this story with anything but suspicion. Here's how Evans puts it:
While I agree we can’t go making demands and bending God into our own image, it doesn’t make sense to me that a God whose defining characteristic is supposed to be love would present Himself to His creation in a way that looks nothing like our understanding of love.  If love can look like abuse, if it can look like genocide, if it can look like rape, if it can look like eternal conscious torture—well, everything is relativized! Our moral compass is rendered totally unreliable.
Of course, there are metaphorical ways to approach the story. You can stress that child-sacrifice was not uncommon in Abraham's day, and treat the moment that God stays Abraham's hand as the key revelatory part in the tale--a kind of divine repudiation of a practice that was accepted at the time. Or you can see the story in terms of its narrative place within a Christian story where God gives His son up to be sacrificed for the sake of all humanity.

But Evans' discussion is about the story when you approach it literally and treat it as an accurate depiction of what God has done. In that case, we are left with an image of God that is starkly at odds with the urgings of a conscience shaped by the Christian ethic of love.

Evans asks whether such a God is worthy of our worship--and sees those who answer yes as forced towards a theology that worships power, that sees omnipotence rather than love as God's defining attribute. And she calls us to a Christian faith that engages our conscience, that allows the richness of our moral experience to shape our reading of the Bible.

Based on this message, Samuel James accuses Evans of being "too tired" to do "the hard work of theology." He likens her to Brittany Maynard, the young woman diagnosed with brain cancer who has recently become a poster child for physician-assisted suicide. In James' analysis, Maynard lacks the perseverance to continue to hope in the face of her grim diagnosis, and so seeks to end her life rather than continue to affirm life's value by fighting to the bitter end. Evans, he thinks, is shaped by a similar despair. But in her case it's her faith, not her life, that's put upon the sacrificial altar.

This strikes me as dead-wrong.

Why? Let me begin by explaining why I can't approach the Abraham story as a straightforward account of what God did in His relationship with Abraham. The story, as it's told in the book of Genesis, takes the following as given: God really did order Abraham to sacrifice his son, and Abraham knew this.

The story asks us to assume that this is true, and to read the story with that assumption in place. For me, this is kind of like someone telling a story about a guy who cuts out a perfectly round square from construction paper and gives it to his girlfriend as a Valentine. If the moral of the story comes out only if one assumes that round squares are real, the storyteller might ask me to assume this for the sake of the story. Maybe, for that purpose, I could momentarily pretend that I believe in round squares. But I could never actually believe in them. And I don't know how long I could sustain the pretense.

Likewise, maybe I can pretend to believe, for the sake of extracting from the story the lessons it intends to teach, that Abraham really knew that God was commanding him to kill his son. But I'm not sure how long I could maintain the pretense.

Someone once asked me to imagine the story of Abraham's testing through Isaac's eyes. I did, and for me the most harrowing part was the trip down the mountain, after Isaac's trust has been violated, his childhood ripped away, his father stolen irreparably from him by an act of treason. Once I imagined it through that perspective, I could never unthink it. In the biblical version of the story, Isaac is incidental. He's just there to serve as the pawn in the test. But if we treat the story as something that really happened, then we can't ignore Isaac's experience. We can't ignore the question of what God would command--and what He wouldn't command--if he genuinely loved not only Abraham, but Abraham's child.

Let me put it this way. Were a voice to thunder from the heavens, "I, the Lord your God, command you to go and kill your son," I would assume I'd gone crazy. And if my sanity wasn't in question, I'd assume I was the object of some high-tech hoax. And if it came down to believing in a supernatural power as the source of the experience, I'd have to conclude something along the following lines: "Satan has taken to thundering commands from the heavens in the name of God."

Under no conditions would I believe that it was actually God who was commanding me to betray my son in defiance of the very meaning of parental love. And why not? Because to do such a thing would be evil. Even if I was sure that God would intervene at the last minute, my child would still be traumatized for life. A good God would not issue commands that, if followed, would inflict such horror. And I have an unwavering faith that God is good.

Put another way, to believe--even in the face of the most astonishing pyrotechnic display of supernatural fireworks--that God was actually commanding me to kill my son, would be to give up my faith in the goodness of God. It would be to stop believing that God is love.

Here is where Samuel James would accuse me of failing to do the "hard work" of theology. Apparently, to do that hard work is to do the hard work of believing the following two things simultaneously:

(a) God is perfectly loving and good.
(b) God might  (and sometimes does) command people to fundamentally betray the trust of the children who love and depend on them, simply as a test or as a sign of loyalty to God.

Sure, I can say the words, "God is love AND God commands people to kill their own children." But I can also say the words, "There is a square that is perfectly round in its shape--but remains wholly a square for all of that." That I can say it doesn't mean I can think it.  

I cannot possibly think it would be anything but evil for me to grab my beloved son, who trusts me and loves me, strap him to a stone, and prepare to slit his throat and set him on fire. I can say the words, but I can't think it.

I could pretend to think it, but such pretense would be hard work--the hard work of pretending to be someone I'm not. The hard work of repeatedly asserting what my conscience thunders against. Sometimes, betraying your integrity is hard work. Is that the "hard work of theology" that Samuel James is talking about? If so, he's turned theology into something ugly.

Let me be clear: Real theology is, indeed, hard work. And that work often includes the effort to determine whether two things that appear to be at odds on the surface are really compatible at a deeper level. When dealing with realities that transcend our limits, we may confront truths that we cannot readily understand. Wrestling with those truths is hard work.

But so is maintaining the pretense that you believe a contradiction. So is pretending to believe in what you can't coherently even think: that round squares exist, for example, or that a God of perfect love lovingly commands us to fundamentally betray the children who put their trust in us.

If James wants us to believe that there is a theological reconciliation that's possible here--a pathway to reconciling the apparent evil of commanding fathers to betray their young sons and the doctrinal commitment to the perfect benevolence of God--then he should do the hard work so that the rest of us can see what he sees. Instead, James simply accuses Evans of giving in to despair.

Presumably, James thinks that, unlike Evans, he has not given in to despair. But this seems wrong to me, too. If Evans has given in to despair, then so has James. And if James hasn't, then neither has Evans.

Why do I say that? Because Evans and James are both confronted with the same theological dilemma--and the difference between them isn't that one gives up in the face of the dilemma and the other does not. The difference is that, while both are forced to give up something to address the dilemma, they choose different things to give up.

Imagine that a parent is confronted with the following horrific dilemma: The house is on fire, and the parent can only bring two of her three kids to safety before it's too late to save the third. The parent who, in the face of this, curls up in a ball and cries while all three children perish has surely given in to despair. The one who charges in and saves as many as she can has not. Do we really think it matters which two the parent saves? If she saves little Billy and Cathy before the house collapses on Mary, she's given in to despair; but if she saves little Billy and Mary, then she hasn't?

Consider the following three claims:
1. The biblical stories that purportedly report God's commands and activities, understood in their straightforward sense, offer an accurate portrait of God's commands and activities.
2. God is perfectly good.
3. My conscience is a product of God's creative work within me, and as such is not profoundly unreliable.
And now imagine that the following is true:
4. My conscience recoils in horror at enough of the things that God purportedly does in biblical stories--at least in their straightforward readings--that I cannot embrace both the resultant portrait of God and the belief in God's perfect goodness unless I treat my conscience as profoundly unreliable.
"4" is like the burning building. It forces us to choose which of 1-3 to give up. And I think it is fair to say that both Evans and James are in this burning building. Unless I'm profoundly mistaken, Samuel James, like me and like Evans, would be deeply hesitant to slash open his son's throat just because a voice claiming to be God told him to. And the reason would be the same one that moves Evans and me: our consciences recoil in horror at the prospect of doing something so unremittingly awful. Surely no God of perfect love and goodness would command something so evil. Like me, I suspect he'd say, "I'm either having delusions or being misled by malicious agents. Surely this is not the voice of God."

And when genocidal maniacs lead campaigns of brutal slaughter and assert a divine mandate, I suspect that Samuel James is just as skeptical of the purported mandate as I am--and as Evans is. And for the same reason: Our conscience recoils.

And this means that 4 is true for all three of us--because the Bible has stories in which God commands genocide, and stories in which He orders child sacrifice.

And given 4, we each have to give up on 1, 2, or 3. It seems that Evans and I have, under these conditions, given up on 1, while James has given up on 3. That is, Evans and I have given up on a certain human theory about how the Bible is related to the revelation of God, while James has given up on a certain human theory about how the human conscience is related to the revelation of God.

How is one of these choices any more a matter of religious despair than the other? Perhaps it would be a matter of despair to give up on all three. I would argue it would be a kind of theological despair to it to give up on #2. But in the choice between 1 and 3, why is one choice any more reflective of despair than the other?

It isn't. Rather, it reflects a difference in theology--a difference in our theology of divine revelation, to be precise. It reflects different answers to the question, "How do we discern the self-disclosure of God?" Developing and defending your own answer to that question in the light of challenging cases that force us to make choices--that is doing the hard work of theology, not giving up on it.

To slap the label of despair on those who develop one theology of revelation rather than another is, it seems to me, simply a refusal to take seriously theologies that differ from one's own. And it seems to me that taking seriously theologies that differ from one's own is part of the hard work of theology.

Tuesday, October 14, 2014

Political Liberalism and California's Affirmative Consent Law

I recently read an LA Times piece by Jonah Goldberg about California's "affirmative consent law," a strategy for attempting to grapple with the problem of rape on college campuses. In that piece, Goldberg sees liberal support for this law as evidence that political liberals are inconsistent or disingenuous when it comes to their views on government intrusion into private sexual behavior. While they cry "theocracy" every time conservatives try to legislate what's allowed in the bedroom, they are here supporting just such sexual legislation themselves. Is Goldberg right?

He opens his piece with this general rant about political liberals:
 You see, for years I've been railing and ranting about the ridiculous myth that liberalism is socially libertarian; that liberals are "live and let live" types simply defending themselves against judgmental conservatives, the real aggressors in the culture war.
That thinking runs counter to most everything liberals justifiably take pride in, as liberals. You can't be "agents for change," "forces for progress," or whatever the current phrase, and claim that you're not the aggressors in the culture war. Liberals have redefined a millenniums-old understanding of marriage while talking as if it were conservatives who wanted to "impose" their values on the nation...
...Liberals, meanwhile, are quite open about their desire to use the state to impose their morality on others. Many conservatives want to do likewise, of course. The difference is that when conservatives try to do it, liberals are quick to charge "theocracy!" and decry the Orwellian horror.
Goldberg then uses this rant as a springboard for claiming that liberal defenders of the affirmative consent law are doing the same kind of thing that conservatives are accused of doing when, say, they endorse sodomy laws. They're trying to regulate private consensual sex.

But there's much that's wrong with Goldberg's opening rant. First of all, it's hardly true that all (or even most) liberals and social progressives try to represent themselves as socially libertarian--although much hinges here on what the qualifier, "socially," is supposed to mean. Liberals certainly see a place for government in remedying social problems, such as systemic discrimination and the exploitation of laborers.

Nor would most liberals claim that they are "simply defending themselves against judgmental conservatives." Liberals and progressives see a world that is not perfect, a world in which social injustice is always a reality and is often entrenched in long-standing systems, And they think people have a responsibility to identify social injustices and work for change. The civil rights movement--which combined nonviolent grass roots activism with lobbying for legal remedies--offers a model for the approach to promoting social justice that liberals and progressives typically endorse. And while "aggressors in the culture war" is not even remotely apt as a description of what the civil rights movement was about, neither is it right to say that civil rights activists were "simply defending themselves against judgmental conservatives."

But beyond the mischaracterization of liberals, there is a deeper misconstrual of the nature of liberalism itself. A hallmark of political liberalism as a philosophy is that it draws a distinction between two things: (a) public principles of justice and (b) the values (both personal and communal) that define a holistic way of life--what the political philosopher John Rawls called "a comprehensive conception of the good life." Political liberals believe in a conception of public justice arrived at by attempting to answer the following question: What kinds of public principles would reasonable people, with different comprehensive value systems, agree to when no one had distinct bargaining advantages?

The principles which emerge from answering that question are ones that, in principle, every reasonable person should accept, regardless of what their holistic value system looks like. When a government shapes public policies in the light of these principles of justice, they are doing so without having to side with one sectarian worldview over another. These rational principles are supposed to provide a framework that allows everyone to live out their own comprehensive conceptions of the good life--usually in community with others--in a manner consistent with everyone having a comparable chance to do the same.

If you look at what Goldberg says, it's as if he isn't even conscious of this structural feature of political liberalism. The distinction between public justice and private values plays a crucial role in the arguments of liberals on topics such as same-sex marriage--but it's entirely missing from Goldberg's rant.

On the issue of same-sex marriage, the political liberal argues that equality under the law is one of those public principles of justice that everyone can reasonably accept (assuming they can step out of their sectarian commitments long enough to ask themselves what principles are needed in order for everyone--regardless of their sectarian principles--to have a comparable chance to live together peaceably as they try to live out their values). Political liberals argue that discrimination under the law is therefore impermissible unless there's a sufficiently powerful justification for it. But such a justification has to itself be based on principles that every reasonable person can accept, regardless of their particular worldview--for example, the concerns about public safety that would justify treating the blind differently under the law when it comes to issuing driver's licenses.

Most notably, political liberals cannot accept a justification for discrimination that appeals to sectarian religious ideas not shared by everyone. If the state did that, it would be adopting the values of that religious sect in a way that compromised its capacity to serve the mediating role it's supposed to serve--the role that's supposed to enable everyone to live out their comprehensive conception of the good life in a manner consistent with everyone else having a comparable chance to do the same.

When liberals cry "theocracy," it's because they fear that social forces are trying to push the state to adopt a particular sectarian value system, rather that operate from neutral principles of justice. And when liberals want the state to legalize same-sex marriage, they don't see themselves as asking the state to impose "their" values on everyone. Rather, they see this as demanded by a neutral principle of justice.

One could, of course, argue that there are no neutral principles of justice, that the distinction political liberals make is a false one, and that their purportedly "public" principles of justice don't spring from objective reason but rather from the liberals' own preferred private value system.

This is not an uncommon criticism, and there may be some truth to it. But if Goldberg wants to make that criticism, he needs to make that criticism. In other words, he needs to acknowledge that liberals perceive this distinction and rely on it in making their case...and then show why he thinks the distinction is illusory. Goldberg does no such thing. He simply assumes that there is no such distinction and interprets liberal politics through the lens of that assumption.

But this amounts to assuming that political liberalism is false and then criticizing it based on that assumption. That's called question-begging.

So what does all of this have to do with California's affirmative consent law? It's worth asking whether the philosophy of political liberalism could justify the kind of sexual regulations at issue in this law. In other words, its worth asking whether there is a relevant difference between California's new approach to regulating sex and the approach on offer in the old sodomy laws that political liberals condemn. But we don't answer this by doing what Goldberg does: mischaracterize the law itself, make sweeping claims about its overreach, and then without argument throw it in the same category as conservative efforts to legislate what happens in the bedroom.

So how do we answer it?

At the heart of political liberalism is the ideal of a society comprised of free and equal citizens with the opportunity to live out their vision of the good life on an equal footing with others. And control over one's body--what is done with it and to it--seems central to anyone's capacity to live in accord with their values. Thus, any reasonable person, regardless of their value system, could endorse a public principle according to which the state uses its power to protect such bodily autonomy. This is presumably why nobody complains about laws against kidnapping, assault, and rape.

In a broad sense, the California affirmative consent law has been passed in order to protect the bodily autonomy of women on college campuses. Hence, in terms of its intent, the law falls within the scope of what political liberals would see as a legitimate exercise of state power. But intentions don't always match with reality. Does the new law, as some critics argue, micro-manage private sexual activity in a way that amounts to an excessive imposition on individual autonomy?

To answer this question, we need to look at the substance of the law.

First of all, we need to be clear that the new law is not defining rape for purposes of criminal law, nor is it about standards of evidence in a court of law or elsewhere. It does nothing to answer the difficult questions of how we determine what really happened in an encounter where the parties are telling competing stories--or when such disputes engender "reasonable doubt."

Rather, the new law is about how to define consent in sexual encounters. It isn't defining consent for the sake of criminal rape cases. It's defining consent for the sake of shaping more useful rape prevention and response programs on college campuses. Specifically, the law ties state financial aid moneys to the implementation of college rape prevention and response programs that adopt an affirmative understanding of consent.

The idea behind affirmative consent is this: Consent is not the absence of a no but, rather, the presence of a yes--verbal or nonverbal. Goldberg is just wrong when he says that the new law "will require a verbal 'yes' at every stage of amorous activity on college campuses." I've read the bill, and it makes no such requirement. He's either deliberately lying in order to make the law an easier target, or he hasn't bothered to read the law carefully before writing an op ed piece against it for a major newspaper. Advocates of affirmative consent consistently insist that there are many ways to convey affirmative consent, both verbal and nonverbal, and the law says nothing that contradicts this widespread understanding.

If it did, then the complaint that the law is engaged in micro-managing bedroom behavior, requiring specific moves of a specific kind at various places, would be legitimate. And such micromanagement would, I think, be hard to justify on political liberal grounds.

So, if affirmative consent doesn't specifically demand a verbal "yes" to every escalation in a sexual encounter, what does it require? The main thing it does is reject the idea that consent is implied in the absence of overt verbal refusal or physical resistance. You can't assume, just because your partner didn't say "no" or fight you off, that she was consenting.

On an affirmative consent model, your failure to actively refuse is not the same as consent and shouldn't be treated as consent. There may be reasons why you fail to say "no" explicitly or forcefully--reasons having to do, for example, with fearing the consequences of such overt refusal. But silently lying there like a stiff log while someone starts using your body isn't the same as consenting to sex. Consent is a positive thing, as opposed to the absence of overt refusal.

There's enormous confusion about this, some of it (I think) willful. But think of it this way. Suppose Joe enters his son's bedroom in order to take money from his son's piggy bank to use for beer. Suppose Joe is carrying a switch with him--a switch that he's used in the past to beat the boy. Suppose the boy watches sulkily from the corner, not saying a word, while Joe takes $40 out of his worldly savings. Has the boy consented to Joe taking his money? Of course not. The boy has uttered no word of refusal and has engaged in not a single act of resistance. But he hasn't consented. Who would assume that he has?

The problem is that, for too long, that's exactly what we've been assuming in the sexual arena.

Understanding consent in affirmative terms doesn't require couples to kill the mood or shut down the rhythm of passion in order to whip out a consent form. If the rhythm of passion is really there--for both parties--then that fact by itself amounts to obvious, in-your-face affirmation of consent.

Let me say that again: If you're in the midst of a sexual encounter and you and your partner are passionately kissing each other, mutually ripping off each others' garments, and eagerly grabbing for each other, you both have very strong evidence of affirmative consent--and no reason to stop to make sure the other person is really into it. When everything your partner is doing is literally screaming out a "Yes! Yes! Yes!," you don't need to stop to ask for a verbal yes.

But if your partner is hesitating, crossing her arms across her chest, pulling away, not returning your kisses, or freezing up as you begin to unbutton her blouse, it's a different story. In that case, pausing to ask whether this is welcome isn't "killing the mood," because there is no mood to kill. At least not for her. And if the worry is that pausing to ask if she really wants this is killing the mood for you--and her moods be damned--then you're acting like a rapist.

Let me say that again: If you don't care about whether she wants to have sex with you or not, and so you charge ahead with your plan to have sex with her no matter how mixed the signals are, because you are indifferent to what she wants, you are acting like a rapist.

The affirmative consent approach is focused on how to treat ambiguity and mixed signals. For too long, people have adopted the idea that if one partner (usually the woman) is giving mixed or ambiguous signals or no signals at all, then she hasn't said "no"--and so the guy should just feel free to assume "yes" and take what he wants. And if it turns out later that her wooden silence happened because his aggressive advances triggered memories of childhood abuse, and she retreated into that same psychological hiding place that she went to when her abuser came into the room...well, how was he supposed to know? After all, she was just lying there like a corpse. Isn't that what people do when they're into having sex with you? Lie there like corpses and stare off into space?

In what other context of human life do we treat such absence-of-active-refusal as default consent? When it comes to something as central to living out our values as control over our own bodies, do we really want to adopt an understanding of consent that is as weak as "If you didn't vigorously refuse, that's as good as saying yes."

Part of the problem here is that, more often than not in cases like this, the woman did actively refuse, did actively say no, and her partner kept pressuring her, often in intimidating ways. And because she saw the trajectory of the evening, because she saw his indifference to her expressed preferences, because she was afraid, she decided it was safest just to stop actively resisting. If he was that indifferent to her wishes, what would happen if she refused more forcefully? Would that just lead to a more forceful response from him? Would it lead to a violent rape? Better, perhaps, under these conditions, to just become a log.

And for too long, when this sort of thing happened, the guy has congratulated himself for his masterful seduction skills: She started out saying no, but--hey!--she stopped saying no! I've won her over!

No. You've worn her out.

The affirmative consent perspective says that becoming a log isn't consent. In other words, this perspective says that something which obviously isn't consent...isn't consent.

Of course, ambiguous signals and silence don't necessarily mean refusal--but they do generate an obligation to check in. And if you don't check in--if you just plow ahead--then you are displaying indifference to your partner's will in the matter. What the affirmative consent approach demands isn't that you kill the mood, but that you check in if your partner doesn't seem to be in the mood. It demands that you not be willfully indifferent to what your partner wants when it comes to the use of her body.

In terms of implications for disciplinary action in response to rape allegations, adopting an affirmative understanding of consent won't resolve any of the "he said/she said" uncertainties that plague these cases. The affirmative understanding of consent will impact disciplinary actions only when the defendant's defense against the charge is that the alleged victim really consented. And what the affirmative understanding will mean in such cases is that we won't be able to evaluate this defense by determining whether the alleged victim was sufficiently diligent in screaming out her refusal. Instead, we will need to assess whether he really had good reasons to think that she wanted to have sex (as opposed to conveniently imposing this assumption on an unclear situation).

To adopt such an understanding of consent, far from being "beyond idiotic" as Goldberg contends, amounts to adopting an understanding of consent that reflects what consent actually is. Consent is more than just not refusing. Consent is affirmative. And adopting such a standard seems eminently reasonable if our goal is to advance individual bodily autonomy.

The California law does not seek to do this by writing such an understanding of consent into the criminal definition of rape. It's unclear how doing so would impact rape prosecutions, given the reasonable doubt standard that applies to criminal cases. It may be that, for the purposes of establishing reasonable doubt, there's little difference between the kind of evidence that could lead to reasonably doubting that the alleged victim refused and the kind of evidence that could lead to reasonably doubting that the alleged victim never consented.

But this law brings the affirmative consent standard to bear in a context where it clearly can make a difference: College policies, including prevention policies that educate the student body about conditions of consent and the difference between saying yes and not saying no.

Political liberalism maintains that certain principles are ones that everyone, regardless of their comprehensive value system, should adopt. A principle of respecting bodily autonomy is one such principle. Such respect is better served by an affirmative understanding of consent than by a negative one. So for me, the only question at issue here has to do with the specific way in which the State of California is acting to promote bodily autonomy--by tying state financial aid money to college rape education, prevention, and institutional disciplinary approaches that reflect the affirmative understanding of consent.

Such a policy has very little in common with laws that seek to criminalize "sodomy"--laws that say it is a criminal offense to insert body part A into body part B even if everyone involved is an eager participant. While the conservative champions of these sodomy laws would be hard pressed to invoke a non-sectarian principle of justice to warrant criminalizing what they want to criminalize, the affirmative consent law can readily point to such a principle: respect for bodily autonomy.

But this is not the same as saying that the way the law expresses this principle fits with the broader constraints of public principles of justice. To show that, we'd need to dig deeper.

Wednesday, October 8, 2014

Marriage Equality Denialism: The Case of Matt Walsh

You've probably heard of global warming denialism and evolution denialism. And of course there's Jesus mythicism, which denies the existence of an historic Jesus. But have you heard about marriage equality denialism?

I'm not talking here about the people who recognize, quite rightly, that marriage equality is not yet a reality in the world. I'm talking about those who deny that marriage equality is even a possibility. I should probably call it "the-possibility-of-marriage-equality denialism," or IPOME denialism...but, well, no.

The other day, the Supreme Court refused to consider appeals of lower court rulings, rulings which overturned same-sex marriage bans in several states. This opened the door for same-sex marriages in Oklahoma and elsewhere. In the wake of this, blogger Matt Walsh--who is good at constructing arguments that include a few true premises--came out as a marriage equality denier. Here's how he puts it in his post, "There Is No Such Thing as Marriage Equality":

I have no problem with marriage equality — except that it doesn’t exist. It can’t exist. It never has existed. It never will exist. ‘Marriage equality’ — that is, the idea that the union between a man and a man can achieve equality with the union between a man and a woman — is nonsense. 
How would I oppose that which cannot be? That’s like trying to pass a law to deny Santa Claus his voting rights.

On one level, Matt's claim here is silly in the way that willful pig-headedness tends to be silly. When people talk about marriage equality, they typically have in mind granting to same-sex couples equal access to the distinct bundle of legal rights that come with civil marriage, rights which are presently available to heterosexual couples.

Is this possible? Of course it is. The proof is in the pudding: There are states which have extended this bundle of legal rights to same-sex couples. Same sex couples in these states have been able to make use of them.

In this straightforward sense of "marriage equality"--the sense that most people actually intend--marriage equality is clearly possible. So what's going on with Matt Walsh's strange assertion? Well, what's going on is that Walsh is deliberately using the term "marriage equality" in a sense different from the one that people today actually have in mind when they discuss marriage equality. This is the willful pig-headedness that I mentioned.

More precisely, what Walsh is doing in this essay is adopting an understanding of what marriage is that's especially popular among Roman Catholic theologians (although, interestingly, is rather different from what one would expect were one to use Roman Catholic marriage vows as one's standard for defining marriage). Walsh then takes "marriage equality" to mean a same-sex relationship "achieving" the same thing that a heterosexual relationship achieves when it becomes a "marriage" in this distinctive sense. And since, in this distinctive sense, a marriage is essentially a procreative union--and since a same-sex couple can't be a procreative union (although they can make babies with third-party help and raise them as a couple)--he denies that same-sex couples can have a marriage. If they can't have one, then marriage equality for them is impossible.

Given that this is what Walsh means, it turns out that his marriage equality denialism denies none of the following:

(1) The legal recognition and rights bestowed through civil marriage can be equally extended to heterosexual and same-sex couples. (They can, even if same-sex couples can't make babies.)

(2) Same-sex couples are just as capable as heterosexual couples of forming a loving, intimate, monogamous relationship. (That's true, too, even if same-sex couples can't make babies.)

(3) Same-sex couples are just as capable as heterosexual couples of making lifelong commitments of fidelity and mutual support. (Yup. True--even if same-sex couples can't make babies.)

(4) Same-sex couples are just as capable as heterosexual couples of forming life-partnerships in which they join their personal, material, and emotional resources together and jointly face the challenges and opportunities of life. (Can be done, even absent baby-making powers.)

(5) Same-sex couples are just as capable of promising "to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and health, until death do us part." (No promise to make babies is included on this list, so there's nothing keeping same-sex couples--and infertile straight ones--from making these vows.)

(6) Same-sex couples are just as capable of keeping those promises. (And just as capable of breaking them. Baby-making involves a different skill-set than what's required for faithful monogamy.)

(7) The chance to publicly make these promises before a religious community--and be held accountable to them by that community--can be equally extended to heterosexual and same-sex couples. (Yup. Communities and societies can do it, even if the couple lacks baby-making powers.)

In other words, when Walsh says marriage equality is impossible, he's using the term "marriage equality" in such a narrow sense that his claim does not rule out...well, marriage equality--at least when that term is used in the ways that most of the people fighting for marriage equality have in mind.

Or let's put it this way: There are all kinds of ways in which same-sex couples are just as capable as heterosexual ones of doing what married couples do. Some of these things are really central to what it means to be married--so central that they are expressed in the traditional marriage vows, something that can't be said of what Walsh treats as essential. 

Furthermore, it's clearly possible for both the state and religious communities to extend to straight and gay couples alike the same opportunity to publicly vow to do these things. It is clearly possible to equally support them in their efforts to live up to these vows. It is clearly possible to hold them equally accountable when they fall short.

All of this means that Walsh's claim that same-sex marriages can't possibly exist amounts to little more than an oddity of language--"If you happen to ascribe to this particular definition of 'marriage,' then same-sex marriages are impossible"--unless Walsh can give compelling reasons why marriage must or ought to be defined in terms of procreative potential instead of in terms of all the other things that characterize marriage as we understand it. And he needs to make this case even though what he treats as definitive isn't even mentioned in the traditional marriage vows.

This is an important point, because it is widely held that marriage vows are performative, in the sense that the act of making those vows before witnesses and appropriate authorities establishes a marriage. If that is true, and if the things that one vows to do are things that same-sex couples can do as readily as heterosexual ones, then it is indeed possible for same-sex couples to be wed, whether or not we think they should be.

It's as if Matt Walsh wants same-sex marriage to be impossible so that he doesn't need to defend his controversial claim that it's wrong.

To be fair, however, Walsh recognizes that his argument won't go very far unless he can make the case that his preferred definition of marriage is the one society must (morally?) adopt. His strategy for making this case is fairly conventional. In recent years, Margaret Somerville and Jean Bethke Elshtain have made essentially the same argument Walsh makes, but at greater length and without Walsh's Wonder Twins simile.

Yeah. The Wonder Twins. Remember those guys? They had super powers, but they had to touch each other to activate them. Walsh likens the human reproductive power to them. You see, most of our powers as human beings--the power to walk and talk and digest potatoes, for example--are powers that we have in the way that Superman has his powers. He's got them all by himself. But our reproductive power is activated only when a man and woman come together and have sex. Which is kind of like the Wonder Twins, except that they don't have sex (I think).

So, this unique and important power requires that a man and a woman get together. Neither has the power alone. And that's pretty special. It is. It's pretty amazing that the power to make a baby requires collaboration between two people, one from each side of what is probably the most visible and significant divide in the human species. It's also pretty amazing that the same collaborative act which makes babies can be an expression of love and intimacy of a uniquely powerful kind (although it can also be an act of violation, an act of mutual recreational use of another's body, a chore, etc.)

But what do we do with these facts? Do we use them as an excuse to marginalize people who are different? Do we make second-class citizens of those whose capacities for sexual intimacy are disconnected from their reproductive powers (disconnected because they are capable of genuine romantic intimacy only in sexual relationships with persons of the same sex)? Do we deny their intimate partnerships the legal standing of civil marriage?

Walsh thinks so. But this isn't a matter of "It's impossible to include them." It's a matter of "I think it's wrong to include them." The language of impossibility is simply operating as a smokescreen in his argument, perhaps because it seems less discriminatory, less deliberately marginalizing, if what you're doing is just describing the cold hard facts.

Walsh wants to avoid the appearance of deliberately trying to exclude same-sex couples from the social and legal goods of marriage, and so instead of taking a stand for discrimination and trying to show why he finds it justified, he says the following: "Marriage is essentially a procreative unit. Your partnership isn't a procreative unit. Hence, it's a sad but inescapable fact that you can't have a marriage. No one's denying it to you. It's just not possible for you to have it."

What's funny is that he recognizes that such a message would be seriously troubling to many (maybe even to himself) if its target were an infertile couple rather than a same-sex one. And so he flails mightily--with rhetorically empty rhetorical questions--to cast the illusion that he has made an argument that somehow immunizes infertile couples from the marginalizing message.

But let's be clear here. Infertile couples are, by virtue of their infertility, non-procreative. They don't make babies. Marriage, by Walsh's definition, is reserved for procreative pairs. So doesn't it follow that in addition to excluding same-sex couples from marriage, we should also exclude couples known to be infertile prior to marriage, including elderly couples who fall in love at the Bingo table?

Walsh tries to say no. He makes the point that infertility is like deafness in humans. Humans have ears--the natural structures whose function is to transfer auditory stimuli to the brain in a useful form. But in some people these structures are broken somewhere. They have a disability. What Walsh notes is that while the non-procreative character of infertile couples springs from a kind of disability like deafness, the non-procreative character of a same-sex couple springs from the fact that their kind of couplehood is incapable by nature of making babies.

This is a difference, but is it a relevant one? I think I mentioned early on that Matt Walsh is one of those bloggers who can be relied upon to use some true premises in his arguments. But more is required of an argument before we call it a good one. Even if all the premises are true, the argument is bad if the conclusion doesn't follow.

So let's explore Walsh's deafness analogy just a bit further. Imagine there's a species of persons in the world who lack ears. Unlike humans, they have no sense of hearing. In their case, their inability to hear isn't a disability. They just aren't designed to have hearing. And suppose that these persons are systematically denied jobs as music critics because they lacked the power to hear. They aren't being denied it because of a disability. They're just members of a species without hearing. But if their inability to hear is the reason we withhold music critic jobs from them, then consistency demands that, for the very same reason, we withhold music critic jobs from the deaf--even though, in their case, the lack of hearing is a disability. If it's just not possible to be a music critic without the power to hear, then it makes no difference whether the lack of hearing is "natural" to your kind or a disability.

Likewise, if our reason for withholding marriage from same-sex couples is that they don't form a procreative unit, then we should also withhold marriage from infertile couples for the same reason. And if we don't withhold marriage from infertile couples, it's because we think that it is perfectly possible for non-procreative couples to have marriages that are fulfilling and meaningful.

In other words, we don't think that lack of procreative capacity is to marriage what deafness is to music criticism. Instead, we think that marriage is the sort of thing that people can enter into for a range of interconnected reasons. People do it for the sake of having a partner in life, for the sake of establishing a crucible of monogamous commitment in which they can better learn how to love in the face of challenges, for the sake of support and nurture and the joy of companionship in life's ups and downs.

While we tend to think marriage provides the best context for child-rearing, it doesn't follow that child-rearing is a necessary part of marriage. While we encourage amorous pairs to limit potentially reproductive sex to marital contexts (for the good of the children that may result), it doesn't follow that we must limit marriage to amorous pairs who engage in potentially reproductive sex.

Of course, there's more to be said. But we can't even begin to explore our moral disagreements about what marriage should be about, and which policies best serve our interests and responsibilities, if we hide behind a smokescreen of impossibility.

Tuesday, October 7, 2014

Same-Sex Marriage in Oklahoma (!!!)...and Gov. Mary Fallin's Response

Yesterday, the United States Supreme Court refused to take up an appeal of a lower-court ruling that declared Oklahoma's same-sex marriage ban unconstitutional. This paved the way for same-sex marriage here in Oklahoma. It was a joyful day for many couples, including a number of friends of mine, who suddenly had a right they'd been denied their entire lives: the right to marry the person they love in their home state.

In other words, for the first time in their lives, gay and lesbian Oklahomans found themselves free from the systemic legal discrimination that Oklahoma has enforced for its entire history (even writing it into its constitution in 2004).

And while friends of mine cheered and cried in joy, while many rushed off to get their marriage licenses and lined up in churches and courthouses to finally receive the legal recognition they'd always been denied, the Governor of our state, Mary Fallin, issued a public statement condemning the decision and its implications.

Earlier today, one of my friends said how grateful he is that his belief system doesn't force him "to stand against love and commitment." Apparently, Mary Fallin's belief system does. For this, I pity her. Consider how hard it must be to be forced by your beliefs to utter words of outrage and condemnation in the face of the joy and tears and hugs of people who love one another, who finally are free to express their love and commitment in the public way that the state has always made available--for everyone but them.

How sad it must be, to feel obligated to throw wet towels on love and laughter.

Here is the wet towel she threw:

"The people of Oklahoma have the right to determine how marriage is defined. In 2004, Oklahomans exercised that right, voting by a margin of 3-1 to define marriage as the union of one man and one woman.

"The will of the people has now been overridden by unelected federal justices, accountable to no one. That is both undemocratic and a violation of states' rights. Rather than allowing states to make their own policies that reflect the values and views of their residents, federal judges have inserted themselves into a state issue to pursue their own agendas.

"Today's decision has been cast by the media as a victory for gay rights. What has been ignored, however, is the right of Oklahomans – and Americans in every state – to write their own laws and govern themselves as they see fit. Those rights have once again been trampled by an arrogant, out-of -control federal government that wants to substitute Oklahoma values with Washington, D.C. values."

Fortunately, as wet towels go, this statement wasn't very wet--and it didn't have much effect on the celebrants.

Let's briefly consider the details of Mary Fallin's claims. As she sees it, Oklahoma should be free to continue to practice marriage discrimination against its gay and lesbian citizens, in defiance of the court ruling that doing so violates the Equal Protection Clause of the 14th Amendment of the US Constitution.

She thinks it is the right of the people of Oklahoma, if the majority so chooses, to systematically exclude a portion of its population from access to the social goods of marriage. For her, this is a matter of "state's rights" and "democracy." Put simply, she thinks it is the right of the majority of the state to exclude select minorities from equal access to legally-conferred social goods, if that so happens to be in line with the majority's values.

But we live in a republic where democratic rule is not absolute. It is not absolute because the founders of this country recognized the importance of protecting individuals and minority groups from a distinct danger: the tyranny of the majority. What the majority of a state has the right to do is and has always been constrained by considerations of individual rights and the obligation of the government to preserve equality and liberty in the face of majorities that sometimes don't care about these things.

The question, then, is this: Does the majority in Oklahoma have the right to systematically exclude persons with a homosexual orientation from access to a valuable social good that the state provides to persons with a heterosexual orientation--namely, marital recognition for their intimate partnerships (and the attendant legal rights and protections).

Put another way, do the people of Oklahoma have the right to legally discriminate against gays and lesbians when it comes to marriage? (For those who are under the impression that there is no legal discrimination going on, see here).

This amounts to a question of justification. Legal discrimination can, in some cases, be justified. For example, the state can justifiably exclude the blind from access to driver's licenses. But legal discrimination is the kind of thing that requires justification. Absent a compelling state interest, legal discrimination violates both the political philosophy on which this country was built and the founding documents that express that philosophy.

The federal courts ruled, in effect, that the State of Oklahoma failed to meet this burden when it comes to its same-sex marriage ban. Hence, the ban was declared an unconstitutional infringement on the rights of persons to receive equal treatment under the law.

In the face of this, does Mary Fallin explain what she thinks is wrong with the federal court rulings? Does she build the case that legal discrimination is justified in this case?

She mentions the values of the people of Oklahoma, as if this were a sufficient basis for justifying the ban. But "majority values" in a state are precisely the sorts of things that cannot, by themselves, justify discriminatory treatment under the law. "Majority values" supported Jim Crow laws in most southern states. The majority can be wrong, its values unjust. If laws are discriminatory, then majority values have to give way. The alternative is to open the door to the untrammeled tyranny of the majority.

If the federal courts made a mistake, then we need to look at where the mistake lies, by looking at the substance of the court arguments. Does Fallin do this?

No. Instead, she throws a red herring. She asserts that the federal judges in question here--who were duly appointed according to the procedures written into federal law--are "unelected" and "accountable to no one." This sounds like she disapproves of the federal judicial system in this country, and thinks it should be radically restructured.

But even if she's right--even if there are good reasons to be unhappy with the design of our federal judicial system--why is that relevant in this case? Does she think the purported flaws in the federal judicial system have compromised the soundness of the ruling against Oklahoma's same-sex marriage ban? If so, she needs to show that this is so. Simply calling the federal judges "arrogant" and "out-of-control" shows us nothing--except that Mary Fallin can fling put-downs.

If you want to show that a flaw in the federal judicial system has compromised one of its rulings, you show this by, first of all, showing that the ruling is unsound. She makes no effort whatsoever to do that. Hence, her vague unhappiness with the way that federal judges get their positions is nothing but irrelevant distraction.

Think of it this way: Our judicial system is at the front lines of our nation's founding commitment to ensure that legal discrimination is not taking place, or when it is, that there is a sufficiently compelling reason for it. Given this fact, Oklahoma's same-sex marriage ban is clearly suspect. A court ruling against it sounds quite reasonable. If Fallin thinks that, despite this, the ruling is wrong, she needs to dig into the substance of the arguments and identify the flaws. Vague complaints and put-downs simply won't do.

What we have here is a fallacy taught in most freshman-level critical thinking classes: the ad hominem fallacy, which is roughly the mistake of attacking a person instead of their views and arguments. Instead of speaking to the substance of the federal rulings, Mary Fallin calls the judges names while vaguely deriding the system that put them in office.

We deserve better than freshman-level logical fallacies from out governor. Really, we do. Until we get it, those who are enjoying their new-found freedom to marry should treat Mary Fallin's statement for what it is: not so much a wet towel as a dirty dishrag.