Today the Supreme Court of the United States will hear oral arguments in two cases related to same sex marriage. The first case deals with California’s proposition eight, a referendum that defined legal marriage as between a man and a woman. The second case deals with the Federal Defense of Marriage Act (DOMA), federal legislation that defines marriage–for the purpose of ascertaining right to spousal benefits–as between a man and a woman.
Popular reporting around the issue has tended to emphasize the significant increase in approval for same sex marriages in the general population. Given that most recent votes on referenda to redefine marriage have failed, it seems counterintuitive to state that a majority of Americans now support it.
The internal logic of media coverage is questionable. That a majority of Americans support gay marriage is given as a basis for urging the Supreme Court to overturn both the California and the Federal legislation. However, at least in the case of Proposition 8, the legislation was already voted on by the people of the State of California. The “most people” argument cuts both ways and a good justice will be hesitant to overturn something on which the electorate have voted (Bush v. Gore, 531 U.S. 98 (2000) notwithstanding).
While these are important issues to discuss, what’s often overlooked is the deeper cultural shift that is taking place. At the core of the debate is a pernicious intellectual shift that places the autonomous individual as the center of his moral universe. This shift isn’t something that simply arose back in, say, 2008. Rather there has been a steady reorienting of our view of the world that moves the “I” to the center.
This is arguably a result of the rise of the discipline of economics and its emergence from the Enlightenment, especially from the work of Adam Smith (The Wealth of Nations and Theory of Moral Sentiments). In Smith’s work, the individual is the frame of reference for most all economic value judgments–a moral actor who makes decisions on the basis of enlightened self interest.
As capitalism developed into consumer capitalism, it is not difficult to see how our current socio-cultural arrangement makes possible something that has never been plausible before: the redefinition of a natural right on the basis of the experience of a relatively small number of people.
John Milbank has written of theology’s false humility. It seems that the state is currently manifesting something like that itself. Social philosopher Will Smith speaks for many when he defines marriage as not based in gender complimentarity or procreation, but instead as being rooted in “love” and “support” in this
“difficult thing we call life.”
Russell Hittinger does a great job of unpacking the state’s false humility in his book, The First Grace:
“The postmodern state…is far less sure of its powers. It claims to be axiologically blind and deferent to individual conceptions of the good. It may not approve of the consequences of abortion, euthanasia, reprogenics, and homosexual marriage, but it feels helpless to use political authority to prohibit–and often, even to publicly discuss–the justice or injustice of these acts. Unsure of the scope of their own sovereignty, postmodern states are prepared to relocate sovereignty in the individual; in other words, postmodern states are prepared to be the guarantor of the rights of individual autonomy. We should not be surprised that individuals now claim private authority to say who shall die and who shall live, who should receive justice and who shall not. Hence we see not merely the privatization of industry and what were once deemed public services (a process that may in some cases be quite defensible and desirable from an economic standpoint), but a privatization of judgments that indisputably belong to public authority: judgments about uses of lethal force and who deserves to live or die, judgments about the strong and the weak, and judgments about whether private parties can claim power over something as common as the genetic infrastructure of the humanum.”
Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (2003): 137. (Emphasis mine).
It seems to me yet another place where the positions of our political parties are inconsistent with their philosophical presuppositions. Based on its tone in the last election cycle, it would seem that the Republican party should be unconditionally supporting the redefinition of marriage since, in every other element of our life together, they seem to be the champions of the rugged individualist who does as he pleases and wins his fortune through hard work.
In reality, our two parties are closer together than we often perceive. Their differences amount to peanuts in the grand scheme of things.
Jeff Gissing 
There is a difference between “most people” and “most voters”. With sometimes less than 50% of eligible people voting many times, it does not necessarily represent the will of the “people” as a whole. Surveys capture “most people”, while items on a ballot may or may not capture most people depending on turnout.
Older wealthier people vote much more than younger poorer people, so where those two groups tend to differ, voting and polling will likely differ.
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I agree with you that voting doesn’t necessarily capture the “will of the people.” I also agree that there are systemic issues (and personal ones as well) that make it difficult for younger, ethnic minority, poorer voters to get out and cast a ballot. Hopefully early voting and/or online voting could help that. At the end of the day elections are our society’s mechanism for making many political decisions.
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I agree. Voting is the best way to officially register public opinion. There is a level of strategy done on different referendums to have them voted on in elections where turnout tends to be low and they can ignite a smaller group to come out strong. I would guess this is how Prop 8 passed in a state like California. Some groups got their base out really well, while others weren’t paying attention.
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Good point. I think prop 8 was on the ballot in Nov 2008 in which President Obama was elected, which presumably would have meant a high turnout of Democrats *and* of African Americans–the former probably opposing prop 8 and the latter favoring it?
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I forgot that Prop 8 was in the Fall 2008 election. African American voters seem to have been a big driver of what many saw as a surprising result. I looked up info, and it was surprising that LA County voted for Prop 8. So, that was perhaps the swing region on that issue. Politics involves some funny games.
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Regarding the reference to Adam Smith, what many today forget is the “enlightened” part of the self-interest he discusses. The economist of the Right only talk about pure self-interest as the engine, completely ignoring the majority of what Smith discusses around the need for that interest to be “enlightened” in order for an economy to work well. If a business sells a crappy product, doesn’t follow up on their promises, creates large indirect costs, or treats their employees poorly, they are acting counter to Adam Smith’s insights.
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I’ve often wondered whether Smith’s capitalism is tenable absent a common moral framework for the entire society (market). In his moral philosophy Smith critiques conceptions about how we arrive at judgments about what is good but he is really only able to do this and build a societal/market economy on the basis of an agreed upon morality.
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Morality in the market place and morality in personal behavior are perhaps very different things. In the marketplace, Smith’s assumption seems to be that all participants in the market are long term players and are interested in the overall growth and health of the community. So, they only provide products that provide real value, and they avoid practices that might create long term harm. If our morality is, “what is good for the individual or corporate entity (maximize shareholder value) must be good for all”, we can get pretty far off base. I am off topic a bit here, but you touched on one of my soapboxes.
More on topic – I am not sure that we can ever arrive at large common moral framework in a democratic society, especially one that embraces freedom of speech and religion. The common morality seems to moving towards individual freedom and “do no harm”. The more specifics around marriage, drugs, and individual behavior may be hard to arrive at a common morality on with such diversity in worldviews and personal situations. Without a government or religion to declare what we are to hold as our common morality, then I think that morality will be very narrowly defined and enforced primarily around areas where one party may be harming another. For example, here in Colorado, people will be free to smoke pot; however, you can’t drive high due to the risk of harm to others.
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Great point.
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I agree on the last bit. I respect the Libertarians at least for their consistency. If you hold the individual and absolute freedom as the highest value, you support economic freedom, and logically freedom to smoke what you want or marry who you want would follow. The parties in some ways represent two forms of freedom, economic/business freedom versus social/behavioral freedom.
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Totally
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I was listening to a story today that was interesting. I am curious to hear your thoughts. Polygamy was commonly accepted as moral in many societies in the past, including in Scripture, of course. The theory proposed was the polygamy had an important social purpose in societies where males were often killed in battle. The ratio of females to males was often 2 to 1 or higher. Thus, polygamy was necessary and accepted as moral. In a society like ours or many previous ones where the ratio has remained close to 1 to 1 for a long time, polygamy is now seen as immoral. This is an instance of moral “progressiveness” that most of us seem to accept as good.
Now, with the ability to have and raise children no longer being restricted to male/female couples thanks to technology and law, the views on that issue too have changed as the societal need to only allow male/female marriage is fading.
It can be difficult for us to determine what parts of morality are timeless and universal and what may or may not have been contextual to time or a particular society. Looking back, I see many instances where the Church has changed its morality and reading of scripture on certain issues as times have changed.
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Interestingly I just read a piece in the Washington Post about polyamorous activists pushing the Unitarian Universalist Church to recognize their relationships as marriages.
If you listen to oral arguments in yesterday’s case before SCOTUS, you recognize two things: (1) that procreation is a necessary but not sufficient cause for gendered marriage and that (2) contemporary jurisprudence does not have a moral vocabulary with which to discuss what are essentially moral issues and instead must default to categories of “harm,” “benefit,” and “interest,” all of which bear no relationship to anything beyond (or above) the discussion at hand in the facts of the case (and any existing precedent).
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I haven’t been able to follow too many details, but some of the justices seem be seeing their role as judging the degree of harm or benefit gay marriage would cause. I am not sure if their role is to be the arbitrator of value on such social issues. I am not hearing much focused on if it is unConstitutional or not to ban it.
Thanks for your thoughts and discussions. I am sure that my context on this issue here in Colorado is a good bit different than the context you are in there. I freely admit that my views are influenced by the people I know and the lives I see here.
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