Nina Simone and Ronald Dworkin on Gay Marriage

This is a very lengthy post, and it really ought to be split up into three parts, but I don’t like that method of web writing. So I’ll do things in the traditional fashion and add, you know, headers and stuff. Right. What follows is an argument in favor of gay marriage based on a Dworkin-esque interpretation of marriage.

I. Why Take the Interpretive Attitude Toward Marriage?
One of the most important talking points in the gay marriage “debate” has been the anti-gay-marriage claim that “marriage is between a man and a woman.” As an advocate of gay marriage, it’s hard to know exactly how to respond to that claim, or, even, what there is to respond to. It seems like simple question-begging in the form of an ontological claim, much as if during the election we’d asserted that “the presidency is a democratic party office.” That certainly may be what you think, and it’s certainly the political position you want to defend, but doesn’t “marriage is between a man and a woman” require an argument?

It’s hard to even know what might ground such an ontological claim. How do we say what marriage “is?” We know what we currently do under the rubric of marriage, but that’s the precise social practice under examination. I take it that the reason we want to know what marriage is is to evaluate claims about what marriage should be. But that means that we can’t just be asking what we currently practice as “marriage.” For our current practice has no immediate relevance to the truth of claims about what our practice ought to be, at least, not without a bunch of other claims about the value of that practice that might as well be asserted without the claim that our practice is just that. (See Hume.) Imagine, for example, if someone defending segregated education before Brown v. Board of Education did so on the basis that education “is” segregated.

So, then, we need some way of making claims about what marriage is underneath our practices of marriage — the essence of marriage, or something like it. What might that method be?

As the title of this post suggests, I think it’s worth thinking about what Dworkin would say in response to this question. Dworkin argues that we ought to take the “interpretive attitude” toward social practices. When we take the interpretive attitude toward a practice, we assume that the practice has some essential normative weight to it — that we don’t have it for no reason at all — but nonetheless that the practice as it stands can be an imperfect fulfillment of the reasons that we have for it — that we might have the potential to do better. We (loosely) then evaluate our practice by explaining it in light of the best normative justification we can give for it as it stands, and then evaluate potential changes to it by asking if there’s a way to make it better match that justification. In a way, then, taking the interpretive attitude on a practice permits us to give an internal critique of that practice — it enables us to ask about a practice the extent to which it meets the ideals and aspirations under which we conduct it.

Dworkin, of course, advances this initially as a project in jurisprudence, but let’s leave aside the question of whether the interpretive attitude is an appropriate way to look at law (about which there has been a very fierce debate, and one in which Dworkin no longer has many defenders) and ask whether it’s an appropriate way to look at marriage.

It seems to me that the interpretive attitude is an excellent way to look at marriage, particularly in the gay marriage debate, because it captures the essential form of argument that the anti-gay-marriage people need to have in order to use “marriage is between a man and a woman” as a reason. That is, the claim “marriage is between a man and a woman,” in order to be a reason to conclude “marriage ought to be between a man and a woman,” presupposes that there is some good reason that we currently run our practices of marriage the way we do — it presupposes what we might call an “inner morality of marriage,” and demands we reject “marriage positivism” (if I may continue to willy-nilly borrow concepts from jurisprudence). If “marriage is between a man and a woman” is any argument at all, it must appeal to some ideal underlying our practices of marriage. We then find ourselves a) needing to discover that ideal to make sense of the argument, and b) with the potential resources to criticize the practice of marriage as it stands today based on that ideal.

II. Sam Schulman, Nina Simone, and Marriage as Wicked Institution

So let’s try and make use of the interpretive attitude. First, what have the anti-gay-marriage folks given as the ideals underlying marriage as it is currently practiced? Well, they mostly haven’t. The one exception is the now-infamous article in the Weekly Standard by Sam Schulman.

Schulman argues that something called “the kinship system” is the root of marriage, and lists four ways in which marriage serves a function in that system:

1) Marriage determines “who may have sexual access to a woman,” and, in the process, protects women from “rape, degradation, and concubinage.”
2) Marriage codifies certain kinds of kinship-based prohibitions against incest and various other forbidden relationships.
3) Marriage creates a category of socially acceptable sex, allowing us to define, by contrast, the “great nuisance” of illicit sex.
4) Marriage initiates people into adulthood and merges families together. (I take it that there is supposed to be some relationship between these functions, but it’s not clear what that relationship is.)

How well does this account achieve the interpretive attitude? Well, to some extent, it fails to give an interpretation of marriage at all — it simply pushes the question one step back, because it interprets marriage in terms of this mysterious “kinship system,” but fails to explain what that system is or why it has any moral or political worth to it. But let’s leave that aside and assume that the four things Schulman lays out constitute an interpretation of marriage all on their own. Let’s consider them one by one.

1) is actually two items, because the regulation of sexual access is different from the protection from rape. The former is, frankly, wicked — it’s a vestige of sexist oppression of the sort that suggests that a father transfers ownership of his daughter to her husband on her wedding day. Women ought to be able to regulate their own sexual access. The latter is not a function of marriage at all. Forgive me for losing track of what century we’re in, but I don’t recall reading any crime statistics recently where rapists were punished by angry husbands/fathers with machine pistols rather than by, you know, the state.

2) It’s certainly a function of marriage to indirectly prevent incest by forbidding brothers and sisters to marry. That’s great — incest is bad, it produces deformed babies sometimes and perhaps has other bad consequences. (I think Saletan’s arguments are better, actually.) Fine. However, it’s odd to suggest that the prevention of incest is the central purpose of marriage, rather than just a happy function. And it’s also hard to suggest that it does that much work in preventing incest, given that brothers and sisters can boink one another to their hearts’ delights without any sanction in our current system — what prevents incest much more effectively is the innate taboo that we all share.

Schulman also lists other prohibitions that marriage codifies. But those, like the regulation of female sexuality, are wicked. Marriage ought not to codify prohibitions of things like “ritual pollution” in the form of cross-religious marriage.

3) I don’t even know what to say about this one. Schulman admits that the category of illicit sex is a “great nuisance,” and further admits that illicit sex is “transmitted to the child” (by making the child a bastard). And this is supposed to be a reason to keep marriage as practiced? I can hear John Stuart Mill screaming in otherworldly agony.

Let’s quote this one in full, because it makes Schulman’s illegitimate moves quite clear.

Third, marriage changes the nature of sexual relations between a man and a woman. Sexual intercourse between a married couple is licit; sexual intercourse before marriage, or adulterous sex during marriage, is not. Illicit sex is not necessarily a crime, but licit sexual intercourse enjoys a sanction in the moral universe, however we understand it, from which premarital and extramarital copulation is excluded. More important, the illicit or licit nature of heterosexual copulation is transmitted to the child, who is deemed legitimate or illegitimate based on the metaphysical category of its parents’ coition.

Now to live in such a system, in which sexual intercourse can be illicit, is a great nuisance. Many of us feel that licit sexuality loses, moreover, a bit of its oomph. Gay lovers live merrily free of this system. Can we imagine Frank’s family and friends warning him that “If Joe were serious, he would put a ring on your finger”? Do we ask Vera to stop stringing Sally along? Gay sexual practice is not sortable into these categories–licit-if-married but illicit-if-not (children adopted by a gay man or hygienically conceived by a lesbian mom can never be regarded as illegitimate). Neither does gay copulation become in any way more permissible, more noble after marriage. It is a scandal that homosexual intercourse should ever have been illegal, but having become legal, there remains no extra sanction–the kind which fathers with shotguns enforce upon heterosexual lovers. I am not aware of any gay marriage activist who suggests that gay men and women should create a new category of disapproval for their own sexual relationships, after so recently having been freed from the onerous and bigoted legal blight on homosexual acts. But without social disapproval of unmarried sex–what kind of madman would seek marriage?

Here’s the abstract structure of that passage.

A: Marriage serves function X.
B: Function X is wicked.
C: The social coercion that function X brings with it gives individuals a reason to get married.
C: Therefore, we shouldn’t separate marriage from function X, because then nobody would get married!

Are you kidding?

(Incidentally, why can’t we “we imagine Frank’s family and friends warning him that ‘If Joe were serious, he would put a ring on your finger?’” I can easily imagine that — there’s no reason to believe that gay people can’t have the same desire for and social pressure toward commitment as straight people — but more on this in a moment when I advance my own interpretation of marriage.)

4) This is a legitimate function of marriage, but it’s one that applies to gay people too. Schulman claims otherwise, but his claims reveal his underlying bigotry:

Even in modern romantic marriages, a groom becomes the hunting or business partner of his father-in-law and a member of his clubs; a bride becomes an ally of her mother-in-law in controlling her husband. There can, of course, be warm relations between families and their children’s same-sex partners, but these come about because of liking, sympathy, and the inherent kindness of many people. A wedding between same-sex lovers does not create the fact (or even the feeling) of kinship between a man and his husband’s family; a woman and her wife’s kin. It will be nothing like the new kinship structure that a marriage imposes willy-nilly on two families who would otherwise loathe each other.

That excerpt is just a load of shit. He gives no reason for believing that gay couples can’t integrate families just as well as straight couples. It’s only because he doesn’t think gay couples are real families that he concludes that they can’t serve the same functions. I daresay that there are plenty of gay couples where one partner is integrated into the other partner’s family, and this number will only increase as gay couples get the legal security of marriage. But I’m foreshadowing again.

The point here is that Schulman’s interpretation of marriage is half bad and half useless to him. The functions of marriage on his account can be divided into three categories:

a) Wicked functions — if marriage really serves as a tool to control female sexuality, then, sure, there ought to be no gay marriage, but the reason for that is that there ought to be no marriage at all, marriage is evil and should be abolished on the spot.

b) False functions — things that marriage doesn’t even do at all, like this rape business, or doesn’t do well compared to other social institutions, like this incest business.

c) Functions that gay marriage could serve just as well — like integrating families.

Because of a) and b), Schulman’s interpretation is a very poor one. Schulman’s marriage is much like Nina Simone’s: “One husband, one wife, whaddya got? Two people sentenced for life.” It makes a very poor grounding for a defense of the claim that the values and functions marriage serves require it to be “between a man and a woman.”

But perhaps we can make some use of c)?

An Alternate Interpretation of Marriage

Here’s a different idea of what marriage is. I think marriage can be understood in its best light as serving two functions, the expressive function and the commitment function.

The expressive function of marriage is that it allows people with particularly strong feelings toward one another to express those feelings in a way that recruits social institutions. Marriage is a really powerful ceremonial way of saying “I love you.”

Marriage is also a commitment device. Anyone who has ever taken a game theory course will recognize this point. Even in an age of no-fault divorce, marriage still dramatically raises the cost to a couple to break up. And that’s a good thing when it’s chosen by couples for that reason. There are many goods that couples can achieve that require a large and risky initial investment — couples may want to rear children (which gay couples can do by adoption, at least once we drop those nasty restrictions too), couples may want to buy a house, couples may want to follow one another across the country for careers, etc. People don’t often do those things with people with whom they’re unmarried, because it’s unwise to take that kind of risk without some kind of assurance that the person with whom you’re doing it will stick around. But it’s not just financial risks that matter here, it’s emotional risks too. Married couples may be able to trust one another at a deeper level because they know that it’ll be too costly to impulsively break up after a small or even a medium-sized fight.

I submit that marriage is valuable because it achieves those two goods. That’s my interpretation of marriage. And it’s an interpretation that allows for a Dworkin-style internal critique. Our practice of marriage does not fully meet the values that justify it because it does not offer those goods to all those who could benefit from it. And, in particular, our practice of marriage does not offer those goods to gay people, even though it could.

We can conclude that the pro-gay-marriage interpretation of marriage is better. Marriage isn’t between a man and a woman. It’s between two people who love one another and want to commit to one another. And that includes gay people.


11 Responses to “Nina Simone and Ronald Dworkin on Gay Marriage”

  1. Daniel S. Goldberg Says:

    Permit me to interject an aretaic point to a fine post:

    Marriage can make one a better person. It has, in fact, done exactly this for me.

  2. Paul Gowder Says:

    The chair accepts that as a friendly, and sensible, amendment!

  3. tobeyola Says:

    Very interesting interpretation! I think it counts as Dworkinian, though, in the negative sense of redefining the phenomena (in this case, marriage; as everyone knows, Dworkin himself has done this with numerous other controversial phenomena, most notoriously, the problem of abortion rights) in a way that destroys the controversy without answering the other side’s objections.

    Let’s look at the Dworkinian background to this new definition of marriage, regarding the abortion case. Dworkin defines abortion in a way that’s friendly to abortion rights: what’s wrong with abortion, he says, is that life has intrinsic value and it’s wrong to destroy things that have intrinsic value. The abortion rights supporter is happy here because it is OK to destroy things that have intrinsic value in support of other social goods, such as equal standing for woman.

    But the abortion rights opponent is unengaged. NO, he replies, this is not what’s wrong with abortion: what’s wrong with abortion is that it is MURDER and murder is ALWAYS wrong.

    And thus an impasse arises. In the abortion case, I think that this question (metaphysical status of fetus as person/non-person) falls in favor of abortion rights, though I have not seen this point well argued. (Getting beyond the point of your post but quickly I think that fetuses are not persons, like other non-human animals do not have the right not to be murdered, and moreover young infants below age four or so (i.e., dawn of theory of mind, empathy, etc.) are also non-persons but protecting infants from murder serves a social purpose in that the terrible mens rea involved in murdering an innocent baby that you can see in front of you is something we want to protect against.)

    In the marriage case, though, I think that this issue (i.e., def of marriage) is better for opponents of gay marriage. That is, I think that there are good theoretical reasons to want to have a concept of heterosexual marriage that differs from homosexual marriage. The reason for this (which that “kinship” article shares at least to some extent) is that there is a material difference between the relationships that it does not take a homophobe to notice: one produces biological children naturally and one does not. Your definition of marriage does not take this significant difference into account, as well as the millenia of social entrenchment of traditional marriage, which is itself NOT wrong, i.e., NOT homophobic, and probably worth something, normatively speaking.

    Indeed, I don’t think that the definition of marriage is, or as I see it even CAN BE, a point in favor of those who support gay marriage rights. The better, and to my mind overwhelming, reason to support gay marriage rights is in pursuit of equal social standing for gays and lesbians. Ensuring that gays and lesbians are free to be who they are publicly and without embarrassment (much less threat of harm) is such an important social good that I think that it recommends changing the definition of marriage (NB to a definition similar to the one you provide). But I think it is crucial to engaging the other side to acknowledge that the definition is being CHANGED (it’s not that we were wrong about marriage all these years…) and to justify why we are changing it. To me, at least, assuming the “interpretive attitude” isn’t a good enough reason.

  4. Paul Gowder Says:

    But why should the definition of marriage be one that makes reference to the production of children?

    Perhaps the most important question is the prior one: what sort of thing makes a “good theoretical reason” to prefer one concept of marriage over another? Perhaps this is my general skepticism about conceptual analysis coming into play here, but I can’t imagine any such reasons except functional ones — that is, except reasons that make reference to the purposes that marriage serves in society. You haven’t said anything inconsistent with that, so I’m not sure whether you agree or disagree with that, but if you disagree, I think it would be worth saying what other kinds of reasons could do the work here.

    That being said, my concern about your distinction between heterosexual and homosexual marriage is that marriage does not facilitate the production of children at all. People are perfectly capable of doing that without marriage. At best marriage facilitates the raising of children. But the raising of children is something that gay people can do just as well as straight people (or, at least, to the extent opponents of gay marriage disagree about that, it’s a legitimate empirical controversy, not a controversy about the definition of marriage). (I hasten to point out that this function is also included in my interpretation of marriage, since child-rearing is one of the things that commitment to a partner facilitates.)

    I’m also not sure why the millennia of social entrenchment of traditional marriage is worth something?

    Actually, I’m not sure that we can really say that there has been such a thing. There certainly has been something marriage-like over such a long period, but many of the institutions going by that name or the local-language equivalent over that period barely resemble one another — in human history, we’ve had lots of polygamy (and still have some), a huge difference between arranged marriages and romantic marriages, etc. Let’s not forget that same-sex marriage happened (until Christian emperors outlawed it) in ancient Rome.

  5. tobeyola Says:

    hey — keep in mind that my aim is not to defend traditional marriage but rather to propose an argumentative strategy for anti-8 people and reject a strategy that seems bankrupt. the anti-8 movement, it seems to me, did take the interpretive attitude during the election: it stated what it wanted without considering why others might not want it. not everyone who opposes gay marriage is a bigot. bullying and mocking pro-8ers (the overwhelming strategy of anti-8ers) seems unproductive and mean-spirited to me. it reminds me of being an undergrad at yale — YUCK. more importantly, the election results show that this approach did not work.

  6. Paul Gowder Says:

    It’s certainly true that whatever the anti-8 approach is, it didn’t work. Though I got the sense that the anti-approach was really more sitting there and complacently expecting the vote to go the right way, not even really participating in the argument. But I agree that bullying and mocking isn’t effective either…

    And really, I agree that the equality approach (that and lots of images of healthy gay families) is best, but I’m just reluctant to also concede this weird ontological claim about marriage being between a man and a woman. Engaging with the other side doesn’t mean conceding all their claims! If the anti-gay-marriage people say “marriage is between a man and a woman,” the task is to give reasons why that’s not what marriage is at all — and that’s what I’m attempting to do by offering a Dworkin-style interpretation of what marriage is.

    I wish I knew what the other side’s strategy for giving reasons to support their claim about what marriage “is” is. Then I could engage it more directly… but a bald assertion of what marriage “is” without any reasons underneath it leaves nothing to engage.

  7. tobeyola Says:

    But the problem with your approach is just what that kinship guy pointed out — marriage is not this wonderful institution but a really problematic one that heterosexual people, historically and today, seem inclined to enter into only as a means of producing children. It may be the case, as you point out, that people can produce children without being married but this isn’t really the point: most people don’t seem to want to do that. Most people want to be married before having children. Historically speaking, marriage is an institution for making children legitimate. Maybe people don’t care so much about that anymore but pregnant women do still typically care about being married to or marrying their child’s father.

    This kind of bondage just does not exist in gay marriages. Other bonds certainly exist but NOT this particular one. Kinship-man points that out, too. Marriage is part of a plan that involves producing children for most heterosexuals. Even if this is not in fact true (e.g. if heterosexuals get married all the time for other reasons) I think this is the conception that pro-8ers draw upon in declaring that marriage is between a man and a woman. And I think it is a powerful conception. In case you can’t tell, it resonates with me :) this sentiment is also reflected in the sense of weirdness that many people experience when heterosexuals do marry for love rather than children. Why would anyone want the baggage of marriage when you can love whoever you want whenever and wherever you want? Traditional marriage has biological baggage that gay marriage does not. So when Ellen Degeneres goes on TV during the election proclaiming her love for Portia and using that to justify getting married, it rings hollow for a lot of people, me included. There is nothing like the bondage of bringing a child into the world. Adoptive parents love children in the same way as biological parents–i’m not arguing with that point–but it is a different kind of responsibility to create a new person. the failure to live up to biological realities is one of the most infuriating things about the left. It’s not conceding the other side’s point that I am asking you to do (though as I’ve made clear I think that their position is better than yours/Dworkin’s in this particular respect — though I do NOT think that a ban on gay marriage follows from the fact that the traditional conception of marriage as between a man and a woman is both reasonable and not intrinsically homophobic — I think that EITHER a ban on gay marriage OR a change in the public understanding of marriage follows): it’s taking it seriously and adopting a conception of marriage that both sides can share.

  8. Paul Gowder Says:

    But here’s the thing — the desire of het couples to be married before producing kids can be explained perfectly well by my interpretation of marriage as a commitment device. Of course one wants to know that the other partner will stick around before producing kids, producing kids is incredibly risky. And this totally matches how people experience kids — consider that a main reason that unmarried pregnancy is understood as bad is because the fathers often abandon the mothers with the kid.

    And it seems to me that gay people can claim to participate in precisely that same institution and for that same reason, minus the biological bits. Surely gay people who want to have children (by adopting, by artificial insemination, whatever) would prefer to get married first, so as to ensure there’s someone around to help care for the kid. Gay people often want kids too…

    The point is that it is imperative to separate producing the kids from raising them. The first is a biological fact that need not have very much social significance. The latter is a social fact that needs social institutions in its support. My argument, I guess, is that “biological reality” is rightly ignored here, because the point of marriage wrt children is about raising them, not popping them out.

    I just can’t believe that there’s something magical about the biological process that makes couples somehow more important, apart from the need to raise the product thereof. I mean, what is having a child in the first place? It’s a) having sex, b) having pregnancy, c) having a child, d) raising the child, e) having a cause b, f) having b cause c, and g) having c cause d. Lesbian couples have a-d, f, and g open to them, lacking only e — which surely isn’t powerful enough on its own to distinguish between reason to marry and reason to not marry. Gay male couples have a, c, d, and g, and the point is similar.

    (Also, on the hollowness point re: Ellen Degeneres, etc. Does it sound hollow when straight people who don’t want children get married? Suppose that I, a notorious child-hater, get married some day — would it be surprising? If I, god forbid, fell in love with some woman and declared my intention to marry her but also to get a vasectomy, would it sound as hollow as Degeneres doing the same?)

  9. Paul Gowder Says:

    Also, what about the huge number of het step-parents? Presumably, in many cases, their marriages are at least partially for the purpose of raising existing children more effectively, rather than producing more…

  10. tobeyola Says:

    I am all for ignoring “biological reality” when it does not affect social practice, as in the case of race. (As you know, I was once interested in biological questions concerning race, e.g., whether it matters that people of various descents seem to have characteristic talents — but I have given this up as I think that any characteristic distribution of talents, if real, is irrelevant to questions about justice.) But issues of gender are different: it seems to me that sometimes biology does matter because, inter alia, making a baby is a serious thing. In particular, it is a serious thing for women and imposes unique costs on them which the traditional understanding of marriage in many respects is designed to address. So I see gay marriage as a feminist issue — in fact, this is one of the reasons I am so personally interested in the issue. Changing the understanding of marriage I think has the possibility of removing burdens of patriarchy from women as well as mitigating social oppression for gays. (This is the primary good of gay marriage as I see it — it allows for public recognition of the goodness and value of homosexual love.) The primary good of traditional marriage is that it protects women. So, hopefully our new understanding of marriage will do both of these things and, in particular, I hope that the one will not erode the other.

  11. Spray Insulations Says:

    i think that gay marriage should be allowed in certain states but not in other states ,.:

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