Critique of Novak against Same Sex Marriage

David Novak, ostensibly a philosopher at the University of Toronto, has written a paean to the glory days of yore when marriage was reserved for a man and his baby-making-machine. As a philosopher, however, he eschews the simple emotional appeals, direct claims of “unnaturalness” and other fallacious arguments of opponents of same sex marriage. Instead he bases his argument entirely on the “traditional” function of marriage in making babies to prop up the state.
Novak, at http://www.thepublicdiscourse.com/viewarticle.php?selectedarticle=2009.06.19.001.pdart, begins,

The question of whether or not there should be same-sex “marriage” has stirred passions and launched debate across the nation. But this debate raises a larger question: why is there an institution called “marriage” at all in a secular society? That is, why should a secular state recognize and structure, even encourage, human associations that have traditionally been called “marriages”? Furthermore, if a secular state does institute marriage, how can that state deny equal access to that institution to any normal couple, physically and mentally, who wants access to it, who wants to be married? The usual precedent cited to bolster the equal access argument is public education: that when the state provides—that is, when the state creates—public schools, then those schools cannot refuse to accept as students anybody who could be educated by them. Why? Because that is the reason the state has set up these schools in the first place: to make as educated a citizenry as is possible. Educated people make better, more discerning, and more productive citizens of a constitutional democracy than do uneducated people. And public schools, so the
argument goes, are the best means to that end.

In fact, without citation to support this claim, it is hard to accept that education is the primary analogy people use to justify same-sex marriage. Public education may be a common analogy for benefits of government support of a public good, but the argument for state-sponsorship of the existence of a public good is different from an argument for equal access to a public good. Novak has shifted his claim from support for the existence of a public good to equal access to a public good. The question “Should the state support the existence of the institution of marriage?” is quite different from the question, “Should the state support equal access to the institution of marriage?” Novak confuses the two questions at the outset. This confusion could be used to argue that because the state should be free in certain instances not to support the existence of an institution, it is also free not to support equal access to that institution. To be clear, just because the state should not institute or support a good, it does not follow that the state should not support equal access to that good. The state need not support the existence of taxi-cabs, but it could support equal access to those cabs so that taxi companies might be forced by law not to discriminate against customers based on gender, race or other factors irrelevant to success of the company. At least in the paper available on the web, Novak does not follow through on this argument. So, we can include this as a fallacy not taken and thank our lucky stars.

Yet even in this precedent, equal access is not provided to everybody. What about those persons whom the state cannot educate because of their severe physical, mental, or emotional impediments? Do these people have a right to equal access to public education? How can one have a right one cannot possibly exercise? (To be sure, most of us think the state does have an obligation to such disadvantaged persons, but that is the obligation to care for them as best it can.) Distinctions can be made if we make them for valid reasons rather than on the basis of irrational prejudice. In other words, there is nothing wrong with discrimination as such, because only arbitrary discrimination is morally objectionable. Indeed, discrimination is necessary. Any definition is necessarily discriminatory in the sense of saying “X applies to Y, but not to Z.” Thus we see that, given differences among persons, not everyone merits equal access, even to public education.

I do not want to make a big point of this argument except for two minor points. First, his use of the terms “discrimination” and its cognates does not follow common usage and subtly suggests acceptability of discrimination understood according to its common usage. Ordinarily, we do not say that one discriminates because one treats two or more things differentially or distinguishes between them. Discrimination, in the common usage, is treating things differently when there is no relevant difference between them, when there is no justification for the differential treatment. Second, it is unclear what Novak means by “arbitrary”. If he means only that the discrimination is based on no reason or relevant difference between individuals, then it is reasonable to say that only arbitrary discrimination is problematic. If he means that there is no difference at all between the individuals treated discriminatorily, then the claim is not correct since discrimination based on patently irrelevant information (say, skin color) would still be based on some difference, just not a relevant one. I don’t think either of these issues plays a further role in his argument.

One thing that distinguishes marriage from public education is that while the state created and instituted public education, it inherited the institution of marriage from traditions that predate the founding of the state. The fact that marriage is pre-political (in the sense that it predates the institution of any secular state) does not mean there are no reasons for the traditional institution of marriage, or that these reasons are not universal and publicly arguable. But, since traditional marriage already has reasons of its own, the state should not therefore supply new and different reasons for an institution it only inherited rather than created itself. Indeed, to supply radically new reasons for something old is to radically transform it by radically redefining it. The most the state can honestly do to an institution that predates its founding (and in many ways transcends its operation) is to refine and reformulate the original reasons why this institution has deserved and still deserves social recognition and support.

It was this paragraph that caught my attention and required rebuttal. This argument is quite simply a series of nonsequiturs. Of course, it is true that marriage pre-dated the existence of the US state, any nation-state and perhaps any civil society whatever. But it is nonsensical to say that, for that reason (or really any other), the state cannot or should not supply its own reasons for maintenance of that institution. Nor does it follow that providing further arguments for an institution radically redefines that institution. Nor, finally, does it follow that we should not redefine such an institution if it is in our best interests.

A consequence of accepting this reasoning would be that we would be forced to accept marriage in whatever, probably unknown, original state marriage was before the existence of a state or civil society. That institution was most likely one between a man and his chattel; one man could have many wives who had no freedom or power to do as they chose in the marriage. Whatever property a woman had would be turned over to her husband, and she had no freedom to leave such a relationship. Presumably no one would accept that marriage should remain in that condition as long as the state exists.

But even this observation does not reveal the true poverty of argumentation here. Suppose that an institution exists, and the state decides to maintain it, why should one think that this means that the state cannot provide additional reasons to maintain the institution without radically redefining it in such a way that the original institution no longer exists? For example, suppose that a study conclusively proves that progressive taxation leads to happier people. For the sake of argument, let’s suppose that this measure indicates some real but subjective feature of people in that society. (Given Novak’s presentation of the argument, we do not require that the argument be a good one, so, strictly speaking, this caveat is not necessary. But, I presume, he requires that the argument be one that would objectively justify the existence of the institution in question.) So, let us suppose, the primary arguments from justice or general welfare for progressive taxation can now be supplemented by the additional claim that people who live in societies with progressive taxation are simply happier than people in societies without progressive taxation. And now suppose that liberals in government argue that one reason to have a progressive system of taxation is that it makes people happier. Would it in any way follow that the progressive system of taxation has been radically redefined or that it can no longer exist? Of course not. The use of arguments in support of an institution is not relevant to the structure of the institution itself.

So, if this argument is such an obvious non-sequitur, why is it here? Because the argument is necessary for the obvious next step of the argument, which relies only on tradition to exclude same sex couples from getting married. We are now officially forbidden in our use of argument to present a justification for marriage that differs from the justification that supported heterosexual marriages only. The arguments for same sex marriage all take it that being of the same sex is an irrelevant difference between same sex marriage and so-called traditional marriage. However, Novak argues that the only justifications for marriage are the ones that were used to justify non-same-sex marriage only. This is a little like arguing about the justification for speed limits based only on justifications used at the time to impose speed limits. If speed limits were first imposed in order to make carriage rides less bumpy, the only argument you could give for a particular speed limit would be its effect on the bumpiness of the ride, not for its effect on public safety. So, keep in mind, the basic argument for excluding non-traditional justifications for marriage is simply invalid; the argument is nonsensical.

Novak proceeds to argue that there are two functions or purposes of marriage, one a private, emotionally affective purpose and one a public purpose, based on the traditional conception of marriage as supporting reproduction. On this second point, Novak’s traditionalist argument above gains purchase. If we have to accept the “traditional” justifications of marriage, then we have a potential justification for limiting marriage in the way Novak wants. If we can understand the public justification of marriage to involve a social and legal arrangement between individuals, for example to insure inheritance of goods without need for a will or for any of the myriad legal benefits of marriage, then Novak can get no traction with his “traditionalist” argument.

Having distinguished private and public justifications for marriage, Novak
argues:

The state has no valid interest in these private relationships and should not, therefore, interfere with them by attempting to govern them in any way. The state should be concerned with marriage’s public effects, not its private affects. We should be wary of ceding control over these emotions to the state, for private affections become distorted when public interest in them inevitably leads to public control of them. The state should no more govern these private relationships any more than it should govern one’s friendships, however long lasting they might be.

Translated, this means that the state cannot justifiably bestow its imprimatur on a marriage justified only by emotions or internal features of the individuals or their relation. If marriage is justified as a mutual commitment to monogamy, love, honor, respect for the other person, friendship, companionship or any other relation purely internal to the couple, then such a marriage should not be validated by the state. The state has no interest in such a relationship and, therefore, should have no power over it.

This is a parody of liberal individualism. Clearly, the state cannot and should not have the power to coerce individuals to love, honor, respect each other or to be friends or long-term companions. But the state’s recognition of the institution of marriage need not entail state control over it. There is no reason a couple’s decision to marry for love or other emotional benefit should imply that they are “ceding control of these emotions to the state”. The government can recognize a social arrangement without taking any control of the internal dynamics of that arrangement. While the state may take an interest in preventing discrimination in admission to public schools, that fact does not imply that anyone need feel any particular emotional affect for those admitted. The government requires that I wear a seatbelt while driving but they cannot and should not govern my attitude toward that law. I may hate the limitation on my freedom or embrace my own self-interest, but no psychological attitude is implied by the law.

I don’t even see how requesting state recognition of the relationship would encourage a psychological tendency to subordinate one’s emotions to the preferences of the state. Passing stricter gun control laws appear inevitably to anger certain citizens enamored of their putative 2nd Amendment rights, but such legislation is not intended to assuage their fears or encourage them to subordinate their emotions to the government’s preferences. Indeed, those who pass such laws know that the result is likely to be the opposite. So, this claim that government recognition of a relationship somehow implies government control of the emotional state of the participants in the relationship is simply not true. Hence, the fact that one purpose of marriage is to legitimize and gain recognition for a primarily private, emotional bond in no way implies that this recognition would give government impermissible control over the participants emotional states.

Having, with significantly flawed argumentation, attempted to rule out private relationships as a possible basis for marriage, Novak tries to argue that for a public basis that rules out same sex couples.

Like the lives of the human beings who have created it, the state seeks its own survival. In order to regularly replenish its citizenry and ensure national continuity, the state has an interest in encouraging procreation and child rearing. Since procreation-with-child-rearing is the only truly public reason for marriage, I think marriage is essentially endorsed and structured by the state to best facilitate the procreation-and-rearing-of-children so born and raised in the society that purposefully maintains and supports that public institution. In general, parents have the primary right to raise the new persons they have brought into the world. Since these parents are responsible for bringing their children into the world and into society, the children have a right to their parents’ attention to them —a claim on their parents to fulfill their parental duty as much as it is possible for them to do. Absent any severe physical, mental, or emotional impediments to parenthood that inevitably lead to abuse or neglect, children are best raised by their natural parents. The state has an interest in respecting and even enforcing the natural claim children have on their own parents. Thus I consider these rights to be natural, in the literal sense of their natal character; and they are natural in the sense of being pre-political and thus not entitlements from the state.

Let us agree to the claim that at least some states, for example, let’s suppose, those based on consent of the governed, have a legitimate right to exist, and a necessary condition of maintenance of that existence is production of new citizens. Hence, the state, we agree, has some interest in there being properly educated, prepared, informed and rational citizens in order to maintain itself, other things being equal. Clearly, however, this legitimate interest has limits. The state could not force people to marry and reproduce against their will. Similarly, the state’s legitimate interest in reproduction of new citizens cannot override other basic responsibilities of the state and rights of individuals.

Having ruled out all the other legitimate reasons for marriage, procreation becomes the only remaining function of marriage. Why Novak does not include female subordination as a legitimate function of marriage is unclear given that that was part of the traditional justification and function of marriage. Nonetheless, Novak has arrived at procreation as a legitimate interest of the state, and procreation as a legitimate function of marriage.

This would appear to be a match made in heaven. Because A has a function of X, and B has an interest in things with function X, B has an interest in A? Well, not necessarily. B might be able to achieve its goal of X without using the institution that also has that function. Private schools have the function of educating citizens, but it does not follow that the state should only allow the existence of private schools. But let us again agree that the state can have some interest in regulating marriage.

But, now, what about all the supposed benefits of heterosexual marriage and heterosexual upbringing of children? What about the rights of children and parents and benefits of these heterosexual-only marriage arrangements? As you might imagine none of the further claims is supported by even an iota of evidence. This is called argument by assertion. Are heterosexual couples the best means to produce offspring best prepared for life in civil society? Perhaps polygamous marriages would be better at supporting such a society. Perhaps a system such as that described in Plato’s Republic would be more successful. Indeed, it’s hard to deny that handing over raising children to those most qualified to do it would be anything but beneficial. Moreover, as Plato observes, we could teach children their responsibilities much more effectively under those circumstances.

But, wait, perhaps this Republic-like fantasy would run afoul of the rights of individuals in the marriage who want to have children and should not, therefore, have them taken away. I’m sorry but that answer is not available. The justification for marriage was production of the ideal quantity and quality of citizens; there is no private justification for marriage based on friendship, companionship or love such as the love one might feel for a child. Moreover, there is no legitimate public interest in raising one’s own children. The public interest is in raising the best children for maintenance of the state. Let’s face it, most of us just don’t do a good job raising children, and the state would be better off leaving us to do the things we’re good at.
While we’re at it, maybe the state ought to limit who gets to reproduce and how often. There’s some genetic basis for many abilities we need in the state. For example, how are we to create a generation of basketball players capable of maintaining America’s dominance in Olympic basketball if we leave reproduction up to individuals? Certainly the state has an interest in its perception around the world, and the Olympics provide a chance for a nation to present itself to that world. I begin to see a case for the forced procreation of Kobe Bryant and Serena Williams.
So, should Novak’s position be watered down to include perhaps a mix of private and public interests in marriage? Perhaps we could include rights of parents to raise their own children, to propagate not just their genes but their beliefs. Perhaps we could recognize that having children makes people feel happy and fulfilled, and that happiness and fulfillment can be at least partial justifications for raising children. If so, then we would also have to admit that private interests could provide at least partial justification for marriage.

Ah, but wait. I suspect that Novak has become dimly aware that his position leads to these prospects, and suddenly becomes a Natural Rights theorist. He anticipates my sophomoric jibes.

Rights are also socially justified desires, and it is the desire of the overwhelming number of children to be raised by their own mother and father, parenting in tandem as a married couple. Just ask children whose parents have divorced if they do not often feel that their natural rights have been violated. Aren’t their feelings justifiable, even if they can rarely be justified in a court of law? (Children cannot sue their divorced parents for “home-wrecking.”) It seems to be the desire of most people to raise the children they have enabled to come into the world, preferably in tandem with the spouse with whom the child was conceived. Just ask parents whose children have been taken away from them if they do not feel their natural rights have been violated. This is why custody hearings exist, to justify the feelings of parents deprived of their children.
Finally, think of the social pathology of communities in which a large number of children are not being raised by both parents, and where a large number of parents, especially a large number of fathers, have abandoned their own children by fleeing from their natural parental responsibility. In all such cases, those having social power and responsibility have to ask themselves whether they could have prevented or at least alleviated some of this social pathology by providing better enforcement and encouragement of the natural rights of children, and the natural rights of their parents for them and their natural duties to them. (Surely, Aristotle’s best criticism of the trans-familial social scheme Plato suggested in the Republic is his warning of the political havoc that is likely to occur in a society when the state attempts to totally displace and usurp the natural rights and duties of parents and children to each other.)

This argument would be more convincing if it were based on evidence. Children in our society have a desire to be raised by their biological parents. But in a different social arrangement children would have different desires. Children’s desires are largely a product of their environment, and there’s plenty of reason to think that the children of same sex couples desire to be raised by their same-sex parents as much as children of heterosexual couples do. Is this an argument against the legality of divorce? Should we also require parents to give their children ice cream since children desire ice cream?

Up to this point, Novak’s argument has been based on interests of the state, but, I suspect, he realizes what the inevitable destination of such reasoning is, so now his argument is suddenly based on natural desires and rights of parents and children. Perhaps this is a better justification providing we can have some concept of natural that rules out the desires and rights of same sex couples to raise children. What about the natural right of parents to raise their biological children in a same sex marriage? Or the natural right of same sex couples to adopt children? Or the natural right of children to be raised by people who love them? If we are to advance a set of natural rights justifying heterosexual marriages, one has to accept similar rights for same sex couples absent some compelling reason that these cases are different, that same sex couples lack these rights.

Do I need to point out that no such argument is advanced?

But Novak is nothing if not fair to his opposition. Ok, well, maybe he’s nothing. He deals with objections,

One objection is that if marriage’s sole public reason is procreation (and being responsible for those whom a couple has procreated), then why hasn’t marriage been “limited . . . to the fertile, or even of an age to be fertile”? But I would answer that objection by citing the old legal principle: de minimis non curat lex, which could be translated (freely) as: The law is only made for what usually obtains. The fact is, the overwhelming number of people who marry are fertile and are of an age to be fertile. And how could we reasonably establish a criterion to determine who is fertile and who isn’t? Wouldn’t any required test to determine one’s fertile suitability for marriage be a colossally humiliating invasion of the privacy of couples engaged to be married? Moreover, in an age when new reproductive technologies are enabling persons heretofore assumed to be sterile to become parents, how can anyone be presumed to be incurably infertile?

So, we do not need to allow something to be legal if people are not likely to do it. The state should finally be able to outlaw Riverdance—that really got on my nerves—and I’m glad to see there’s a justification for banning it. And that justification has a Latin name, too. Seriously, the problem here is the absurd notion that we can derive a single function from an institution that serves and always has served a large variety of different functions, some of which, e.g. inheritance rights, we approve and some of which, e.g. female subjugation, we no longer do. If we are suddenly concerned with privacy rights of individuals, I do not see how it is any of the state’s business whether a same sex couple wants to adopt, use artificial insemination or some other means of having children. Perhaps he thinks these are all unnatural and we can tell easily that same sex couples require some intervention of this kind to procreate (assuming they do not have children from a heterosexual marriage), but I can think of a lot of equally unnatural medical procedures (e.g. insulin for diabetics) that we have moral obligations to allow. And there are others, especially the elderly, who are equally obviously incapable of procreation. I suppose here we revert to the Few-people-will-do-it-so-we-don’t-need-to-outlaw-it standard. But, as far as I can tell, we could equally well argue that few people will do it, so we don’t need to allow it.

So, what about people, same sex couples included, who want children but are not capable of producing them together biologically? Apparently, this is a massive violation of the rights of the soon-to-exist child. Novak writes,

First, consider surrogacy or artificial insemination. This involves a violation of a child’s natural right to have both natural parents raise him or her. In the case of surrogacy, two homosexual men ask (more often, pay) a woman to be inseminated from the semen of one of them, or from a mixture of semen from both of them. But here is a conspiracy ab initio to prevent the child so conceived from being raised by —often not to even recognize—his or her own natural mother. In the case of artificial insemination, two homosexual women arrange for a man to donate (often, sell) his semen in order to impregnate one of these women. And here is also a conspiracy to prevent the child so conceived from being raised by—much more often not to even recognize—his or her natural father. (Likewise, there is the same conspiracy on the part of a single woman who has herself inseminated, usually without even any future plans for a marriage that could at least provide her child with a stepfather, who might adopt her child.) Isn’t all of this an intentional violation of a child’s natural right to have either a father or a mother or both? All of these present moral violations which should goad people like myself to work for legal change in the whole area of family relations, including change of laws that permit an unborn child to be deprived of his or her right to life, which is the basis of all other rights, like the right of a living human being to have parents who are responsible for his or her upbringing.

Words fail me. It is remarkable the natural rights children have. Why should one think that a child has any of these natural rights? Because children benefit by being raised by “natural” parents? Surely there are cases when being raised by “natural” parents would be worse than being raised by the “artificial” ones. Those dastardly sperm donors who sell their sperm—for money!—are clearly too immoral to have children, so the artificial inseminatee would clearly be a better parent than the sperm donor.

What other natural rights do children have? Do they have a natural right to know whether their parents were hooking up in the back of a car when they were conceived? Do they have a natural right to know whether Mom is really a blond? Again, Novak argues by assertion. All one has to do to make one’s case is assert a natural right that is violated by the thing with which one disagrees. Here, I’ll try it. I have a natural right for others not to make absurd arguments against same sex marriage. Viola! The police have been informed, Professor Novak, about your violation of my natural rights you should expect escort to a prison where other inmates are likely to perform their natural functions as well as they can given the circumstances. Or perhaps we can save all this hassle and merely assert a natural right to same sex marriage. Certainly it’s more plausible that all people should have equal rights to beneficial institutions regardless of their sexual orientation.

Second, consider adoption. Despite all my talk about natural parentage and childhood, I am in favor of the institution of adoption. Surely, a child’s right to being raised by adults is better upheld by adoptive parents than by natural parents, when these natural parents are unable or unwilling to raise their natural offspring. And, in principle, I am not opposed to a gay or lesbian couple being able to raise a child whose natural parents have abandoned him or her (whether voluntarily, or necessarily in cases of death or debilitating illness). Surely, a child is better raised by a couple who love him or her and each other than being raised in the less personal setting of an orphanage, or being raised by foster parents who are paid by the state to care for children nobody else wants, and who do so at less cost to the state than the cost of maintaining orphanages. Nevertheless, all things being equal, I think it is best that such an abandoned child be adopted by a heterosexual married couple rather than be adopted by a homosexual couple. That is because a heterosexual couple can better simulate—perhaps improve upon—the heterosexual union that produced this child and should be raising this child. It better simulates the duty of the natural parents to this child, a duty they would not or could not exercise.
This, by the way, is not arguing empirically that opposite sex couples are necessarily better at raising children than same-sex couples. My arguments are based on the concepts of rights, not on the concept of utility. Thus my arguments are a priori, not a posteriori.

It’s generous of Novak to consider that some same sex couples could raise children. But don’t worry, he’s not really generous. In fact, he’s not even rational. I can say this a priori, independently of experience, without even meeting him! Somehow one can know independently of experience that all heterosexual couples (except for the ones who have given up their children for adoption and therefore are not) are better at raising children because they can better “simulate the duty of the natural parents”. This simply boggles the mind. What does he mean by “simulate the duty of the natural parents”? Is he talking about heterosexual sex? Because that’s the only thing one can know about heterosexual couples as opposed to same sex couples a priori. Pretty much by definition heterosexual couples are of different sexes and same sex couples are not, but that’s the only thing one can know about the differences between them without actual empirical evidence.

At any rate, whatever this simulation is, it can only be justified by the welfare of the child, and Novak has admitted that same sex couples are often better parents than heterosexual couples, especially, apparently any couple that would give up their child for adoption. (We know this because “they would not or could not exercise” their natural duties.) Since Novak has already admitted that same sex couples can be better parents than heterosexual couples, there’s no possibility that he can know the opposite a priori or any other way. His conclusion is nothing but bluster and obfuscation.

After processing all this argument, the only conclusion I can reach is that Novak’s arguments are just the same emotional arguments as those given by any other anti-same-sex-marriage proponent, but they are simply disguised in the language of objectivity, reason and philosophy. But disguising them does not make them any more objective or reasonable.

Thanks to SadlyNo for the link.