Sunday, March 10, 2013

Sensible Distinctions

I don't really like to focus on political questions like this anymore, but I found this fascinating. It was just pointed out to me that the legalization of gay marriage in the UK apparently makes certain distinctions still between same-sex couples and opposite-sex couples. Specifically, gay marriages apparently have no "consummation test" (ie, non-consummation can't be pleaded as a grounds for dissolution) and also no same-sex "adultery" as a grounds for divorce (as adultery is defined only as the act which is of the procreative sort).

Now, this is really interesting to me. If gay marriage in the UK has (unlike straight marriage) no "consummation test," and homosexual sex acts are not considered as adultery...then one has to wonder how exactly this law is controversial to conservative Catholics, even if the official moral teachings are granted? I'd tend to think it's really not, and the opposition must mainly come, at this point, from homophobia.

Because as it stands, it would basically just seem to be like the civil partnerships the Scottish Christian Party proposed under this rationale: "We will seek to widen the scope of Civil Partnership to include all people who have committed to live together as a single household. This could include friends, sisters, brothers, and a parent with his or her adult child who chose to make this commitment. The Scottish Christian Party will take the criteria for Civil Partnership out of the bedroom and into the living room - sexuality should play no role because it discriminates against these other partnerships."

It sounds like gay marriage in the UK, while conceding the word "marriage"...indeed has absolutely no "bedroom criteria." And I think this makes sense. Consummation and full-fledged adultery (ie, intercourse of the potentially procreative sort) matter legally in straight marriage because they involve the commitment to the other person of one's procreative capacity, the commitment to the other person to not have (or risk having) children with anyone else, to be exclusively the parents of each others subsequent offspring (if any) for as long as you both shall live. On the other hand, purely recreational sex acts of the "masturbatory" sort, while they might matter in a subjective emotional way to the couple, have no such "objective" value to give them legal relevance.

But given that the UK law apparently agrees on this point (common sense really)...I really don't think it should be controversial even from the official Catholic moral standpoint.

The argument has been that this is the State recognizing sex acts that Church considers illicit, "licensing sodomy" and all this. Now, I'll point out: even if one is against such things morally, it's still not clear that State licensing is bad. The Church supported State licensing of brothels in the Middle Ages because "containing" lust and regulating it was seen as better than driving it underground or having it "run loose" in society. I've had friends make "the Catholic case for gay civil marriage" or unions on these grounds before, and I think it's valid.

But apparently the UK law is not even like that! Apparently the State in the UK is simply utterly neutral to the sex question when it comes to civil marital relationships, outside acts of the procreative sort. Except perhaps, I assume, inasmuch as other acts of infidelity might be contained more broadly under subjective "alienation of affection" grounds. But the law is apparently not, at this point, enshrining some sort of false or arbitrary essentialism about gay sexual relationships into law.

As such, it doesn't seem like gay marriage in the UK is legally licensing gay sex at all, but rather simply the partnerships completely abstracted from the sex question.

So shouldn't the Church be satisfied with this? It legally recognizes that straight couples are significantly different in the "[potential] breeding pair" aspect of their relationship, that only heterovaginal intercourse is "really" sex, and yet recognizes that as partnerships qua partnerships abstracted from that aspect, gay couples may be equivalent to straight. And even that, while they can't possibly be the biological children of each other's children, a gay household still involves the understanding to not become the parent of anyone else's (as heterosexual adultery still applies); it is the sort of commitment (like joining a monastery!) that excludes going off and founding a family with anyone else.

This recognizes that sex acts are really only specifically important to the State, to society as a public matter, inasmuch as they concern potential procreation, but also recognizes that domestic/life-partnership units have a public role and real value that is not dependent on sexual involvement one way or the other. God, I love the Brits! They're so sensible and level-headed about things!

The only controversial point would seem the semantics. The labeling question is admittedly tricky, because the question of how much of the historical and symbolic "weight" of the mantle of "Marriage," and the social understandings and value attached to it, belongs to the aspect of partnership qua partnership, and how much belongs to the aspect of procreation. The French bishops recently recognized the "social fecundity" of gay relationships, but it is hard to "split" the symbolic value of the institution between social and literal fecundity in any straightforward way given how the two things were simply constructed as part of one organic whole for so long; it's a bit like preforming brain surgery.

Now, one solution might be to concede "marriage" to all couples, but reserve "matrimony" for the mating sort. But even that may be unnecessary. As one would tend to think that, even if the same word is used, few people are going, merely on account of a label being extended by analogy, to give the portion of the symbolic weight that belongs properly to procreative a same-sex couple. I just don't think using the same word really represents any sort of threat of or potential cause of confusion there. People are able to use common sense in these things, after all! People already know a same-sex couple can't actually mate. Duh. People also know that the creation of new life is important. Duh. So using the same label is not going to cause any confusion on this point, I assume.


Agellius said...

"So shouldn't the Church be satisfied with this? It legally recognizes that straight couples are significantly different in the "[potential] breeding pair" aspect of their relationship, that only heterovaginal intercourse is "really" sex, and yet recognizes that as partnerships qua partnerships abstracted from that aspect, gay couples may be equivalent to straight."

I may be missing your point.

I thought the whole point of the Church's opposition was that gay and straight couples "are significantly different in the "[potential] breeding pair" aspect of their relationship", i.e. that marriage is essentially about breeding, hence the consummation requirement for one to be valid. So saying that the Church should have no problem with gay marriage as long as there is no consummation requirement for gay couples, seems to miss the point.

From a secular point of view, I would concede that since we allow no-fault divorce, birth control and abortion, there's little point in getting all upset about gay marriage, since we as a society are obviously not thinking of marriage as the Church does, as permanent and primarily for the purpose of breeding.

In other words, our secular society has already made an essential breach with the Church's requirements for marriage. If the worry is that we don't want secular society to make that breach, then it's weird that there wasn't the same kind of outcry and "kicking and screaming" when no-fault divorce and birth control were introduced.

Then again, we were primarily a Protestant society when those things happened, and the Protestants had already kicked the stool out from under themselves on those issues.

Still, divorce and birth control don't *essentially* destroy a marriage, i.e. make it not a marriage. They are just wrong things to do within a genuine marriage. Whereas two persons of the same sex getting married is not marriage at all, as the Church conceives of it. So although we already, as a society, had a screwed up idea of marriage, it could still be recognized as marriage.

Whereas with gay marriage, we are now making marriage into not-marriage and making no bones about it. I guess this is why the apparently straight-line trajectory towards full legalization still pains some of us. Still, our society already had a view of marriage essentially different from the Church's, a long time ago.

A Sinner said...

"I may be missing your point. I thought the whole point of the Church's opposition was that gay and straight couples 'are significantly different in the "[potential] breeding pair" aspect of their relationship,' i.e. that marriage is essentially about breeding, hence the consummation requirement for one to be valid."

Yes, exactly. But the British law regarding gay marriage...RECOGNIZES that distinction. By having no consummation requirement for gay marriages, it's recognizing that heterosexual relationships or marriages AS specifically sexual relationships...are significantly different than gay relationships and, in fact, that only heterosexual sex is "really" sex, is the only sexual activity that is actually publicly, objectively, legally significant for the purposes of marriage.

"we as a society are obviously not thinking of marriage as the Church does, as permanent and primarily for the purpose of breeding."

Well, again, you seem to be getting caught up over the mere WORD "marriage." But that's just a label.

The truth is that the distinction made in the UK law regarding sexual activity is a recognition that, for heterosexuals, the mating aspect, the "exchange of fertilities," is an essential part of the marriage contract, whereas for gays it can't be.

Though they're being grouped under the same name, and are similar in other ways, it still seems to a constitute a common-sense recognition that there are ultimately two different subspecies of this social institution, and that an essential distinguishing feature of the heterosexual marriage contract centers on mutual rights to procreation in a way that a gay marriage contract simply can't logically include.

"Whereas two persons of the same sex getting married is not marriage at all, as the Church conceives of it."

Again, "marriage" is just a word. If you are defining marriage, essentially, a contract to (among other things) give mutual rights to each other's fertility, to make ones spouse the "other half" of one's reproductive system in a one-flesh union...then, of course. But if "marriage" is being defined more broadly to mean any domestic or life partnership, and the heterosexual "one flesh" type is considered only one subspecies of marriage...then this is simply a semantic/labeling game.

The British law may use the same word "marriage," but it does not redefine heterosexual marriage to remove the procreative/one-flesh essence. It does not redefine ALL marriages to mean simply "a voluntaristic designation of partnership for a close intimate relationship" without any reference to the procreative aspect, but rather simply says that for straight marriages that REMAINS part of the essence/definition! Whereas for gay marriages it can't and so doesn't. This is the "sensible distinction" for which I titled my post.

Brandon said...

I think I'm pretty much in agreement with this. (Things are complicated, I think, by the fact that the UK has an established church, but at present all proposals on the table, at least that I've heard of, make the distinction there, too: opposite-sex couples can have a religious or civil marriage ceremony, while same-sex marriage is purely civil.)

If one rejects this as inadequate, it would have to be on the basis of not making the distinction clearly enough, or with sufficient force, or something like that, rather than on the basis of not making the distinction, simply speaking; and that is a very different kind of argument, however verbally similar it might sound in summary. It does bring up some important issues (the semantic one you note, and the fact that people really do take law as metaphysics with surprising frequency, etc.), and these would have to be considered, but I think you're quite right that the approach shows that there are at least some kinds of gay marriage regimes that are at least consistent with making the fundamental distinction.

One way to talk about it by analogy would be to say that it shifts the matter from moral science to prudence, i.e., from the domain of natural law theory (is it wrong?) to that of casuistics (is it too imprudent, all things considered?). And while both kinds of questions are important, they are not at all the same.

A Sinner said...

Yeah, the "law as metaphysics" problem is strange. Obviously, the desire to have the State grant "marriage" rather than "civil unions" or partnerships (even while heterosexual marriages remain, by the very fact of their structural fecundity, different in at least that aspect, and require different legality at least as regards paternity/filiation questions) comes from a desire to gain the mantle of social approbation or recognition or affirmation.

I understand this very much, on one level. As I asked in the comments somewhere around here, will as many obscure relatives attend my commitment ceremony as would attend if I did call it a "wedding"? Especially as language and society evolve, will people understand that my partner is just as important to me, and that I consider the relational commitment of equal weight (obviously, there could be no procreative commitment), as a "husband" or "wife" or "spouse"??

There is a real "symbolic weight" or value attached even to the mere word. The thing that is a BIT disturbing is this idea that it is the State which has the power to confer the symbolic weight of the label in Society's name, rather than having to wait for an organic evolution of the language and connotations/associations.

As I said in my last paragraph, the symbolic weight question is tricky, as surely SOME of the symbolic and historic weight of the mantle of "marriage" should remain reserved for procreation, attached to it specifically, lest the creation of new life seemingly be considered a metaphysical zero. But, at the same time, I doubt this will really be an issue. At the end of the day, people have common sense, and extending the label linguistically to a "polyphyletic" group won't remove the fact that a distinction exists and everyone knows it.

As for same-sex marriages being purely civil in the UK, I'm not sure that's true. The Established Church is not allowed to preform gay marriages, and other churches can opt out. And yet other churches are free to preform them if they opt-in, as I understand it. And, of course, as in some Catholic countries can always get a civil license and then have a "private" religious ceremony blessing it according to your denomination's teachings if you want.

People who understand that the State does not "create" relationships, but merely recognizes them, and that the commitment itself (in whatever form it takes) is really a matter for the family and civil society...won't mind this, though.

Brandon said...

You're right, of course, about the civil/religious thing; I was thinking too exclusively in terms of the issues arising from an established church (which adds another layer of symbolic complications).

The law as metaphysics issue, I think is probably just a matter of people thinking about metaphysics in vocabularies that are available, of which law is a continual source. (It comes up elsewhere; it's not uncommon to find people thinking that 'quickening' was somehow important once for when life began, when in reality 'quickening' was just a legal term in some jurisdictions indicating an arbitrary point for determining (e.g.) when a mother could demand penalties if someone caused her to miscarry. But, of course, it was a point that actually affected people's lives, so it stuck in people's memories. Perhaps an example in our day would be age of consent, which is obviously picked simply out of very general considerations of common good, but which is often treated as something seriously set in the nature of things.) But people tend more or less to navigate the issue of distinctions in divorce fairly well at present, so, as you say, there's no reason to think they couldn't navigate the issue of marriage.

A Sinner said...

I think the most sensible ruling the US Supreme Court could make would be something like this:

Say that all 50 States must grant (and the federal government must recognize) civil unions of some sort; in other words, all the legal rights and benefits that married couples currently get (at least those that accrue to the relationship as such; but not those relating to mating and offspring particularly).

However, leave the question of whether the WORD "Marriage" describes the more narrow category of mating unions involving the question of potential offspring, or whether it more broadly applies to life-partnerships in general, to the States (and the federal government) to decide for themselves equally. Questions of adoption rights for couples should also probably be left to the States for now.