Ethics: November 2008 Archives

One justification for disallowing bans on same-sex marriage is that it's seen as discrimination to prevent same-sex couples from marrying. [In this post I'm not considering under what circumstances discrimination is wrong and when it's perfectly ok. The moral issue isn't my interest here. I'm just looking at whether it's discrimination, leaving aside the moral issue of whether such discrimination is ok. It's ok to discriminate against black people when casting a part in a play for a character that was written as a white racist. But it's still discrimination, just a perfectly legitimate kind. I'm interested in the legal implications here, not the moral ones.]

Whether a practice or act counts as discrimination depends on some assumptions. Two key issues are (a) who is being discriminated against and (b) on what basis.

Consider Loving v. Virginia, the Supreme Court case that overturned bans on interracial marriage. The Supreme Court ruled that the Equal Protection clause of the 14th Amendment prevents states from treating individuals of different races differently when it comes to who they can marry. If a man is black, he couldn't marry a white woman in Virginia, but if he'd been white then he could have. That's discrimination against individuals along race lines.

Restricting marriage to same-sex couples isn't quite parallel. It doesn't discriminate against individuals according to sexual orientation. A gay man has the same rights as a straight man. He can marry an unmarried woman who is of age or who otherwise satisfies the requirements for marriage (parental consent or whatever). Both can marry women, and neither can marry men. Similarly, a lesbian has the same rights as a heterosexual woman. Both can marry men, and neither can marry women. That's not discrimination according to sexual orientation, since people of both sexual orientations (holding sex constant) have exactly the same restrictions. The law is equally applied to gays and straights.

But it is discrimination against couples. Same-sex couples are not allowed something that opposite-sex couples are allowed. Does a couple have the kind of legal status to serve as a party in this kind of legal question? My suspicion is that it would be a major innovation in our legal system to treat a couple as a legal entity. I'm not sure that's the best strategy for same-sex couples to try if they want to make headway on this issue, but it is the easiest way to end up with a discrimination claim on the basis of sexual orientation.

I've long thought that the most promising case that bans on same-sex marriage are discrimination is to ignore sexual orientation entirely and to focus on a different basis of discrimination. Men are being discriminated against on the basis of their sex by not being allowed to marry people women are allowed to marry, and women are being discriminated against on the basis of their sex by not being allowed to marry people men can marry. If you ignore sexual orientation, as many social conservatives want to do, then this complaint gets a footing. Of course you have to think any discrimination on the basis of sex is wrong or explain why this particular one is if others aren't, which puts you back to square one if you want to draw a negative moral conclusion, but I'm ignoring that in this post.

In the wake of same-sex marriage court decisions and legislation, many seek to define 'marriage' in terms that require a marriage to be between one man and one woman. Now I'm not on the bandwagon that says that, just because the term has always meant that, it must still mean that. A lot of people apparently think that's a good argument, but words change their meaning. It's never safe to base your ethical argument on what a term has meant in the past. Nevertheless, some of the responses to this sort of view are also pretty lame. One argument I've seen a handful of times showed up recently in a comment at Pharyngula:

Sure is funny how "God ordered each and all marriages [sic] to be between one man and one woman". Gosh, I guess Solomon missed that one. And others - I'm no bible student, help me out here.

Right, you're no Bible student. A Bible student would know that Solomon was criticized for his marriages within the very same book that sees his marriages as a sign of the prosperity God had blessed him with. So the biblical narrator's attitude toward Solomon's marriages is at least complex.

But you're apparently also no logic student. Think about polygamous marriages. Did Warren Jeffs have a group marriage? Were the women he was married to also married to each other? Or was it just a bunch of marriages, each one consisting of Jeffs and a woman? Did Solomon have all these wives who were married to each other as much as they were married to him? Or was he married to each one of them in a separate marriage? Maybe group marriages have occurred. I have no idea. But that's not polygamy. Polygamy is one man marrying separate women in multiple marriages, with each marriage involving one man-woman pair. Polygamy is no exception to the claim that marriage has always consisted of one man and one woman. It's just an exception to the claim that no one has more than one marriage at once.

Dawkins vs. Potter

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In a bizarrely ironic twist, Richard Dawkins has joined the anti-Harry-Potter bandwagon. I wonder if his allies in this fight will appreciate his help.

It reminds me of when secular feminists decided to recognize the harm pornography contributes toward women. The difference here is that Dawkins' reasons don't seem to be anything like the usual anti-Harry crowd's. Religious opposition to pornography typically involves some reasons the recent feminist opposition hasn't included (such as its being wrong to lust after someone you're not married to), but Focus on the Family and other evangelical groups that have opposed pornography have long accepted many of the same arguments that feminist opponents of pornography have more recently come to. It objectifies women. It sends a message about women that harms them and psychologically influences the men who view it in a way that leads them to do things that further affect women negatively. I've seen one prominent feminist, Catherine MacKinnon, claim that her religious allies against pornography didn't share any of her reasons, but when I read that I couldn't help but conclude that she hadn't actually talked to James Dobson, Josh McDowell, or any others among the most prominent evangelicals opposing pornography. I'd heard almost all of MacKinnon's arguments from evangelicals while growing up.

Dawkins, on the other hand, shares very little in reasoning with other Potter foes. He doesn't fear that kids are going to become Satanists because they read fantasy literature, and he doesn't care a whole lot about whether the series teaches kids bad morals. (By the way, David Baggett's chapter in Harry Potter and Philosophy gives an excellent response to such arguments, especialyl on the latter issue.) Dawkins just worries about whether it's a good thing to stir kids' imaginations about things that aren't possible given the way the physical world works in real life, and his reason for that is that he expects fantastical literature to open kids' minds up to the possibility that naturalism is false, which might make them more likely to become creationists or something.

Divine Supererogation

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Supererogatory actions are things that would be good to do but aren't morally required. In some sense, there are lots of good things that I could do that aren't morally required. I can't do every possible good deed I could do, for instance, because I only have a limited amount of time. But the difference with supererogatory acts is that they're supposed to be above and beyond the call of duty. They're actions that would be wonderful to do but are not required in the sense that I would be a better person if I did it, and the action is better than what I end up doing instead, but I still have no obligation to do it.

I've argued that Christians should not accept the category of supererogatory acts. I'm not changing my position on that, at least when it comes to human actions. I don't think there are any cases where I'd be doing a better thing if I did something different but am nonetheless perfectly ok not to do it. If I'm doing something less good, I'm failing in my responsibility to be perfect as God is perfect. I don't see how Christians can accept biblical teaching on ethics and accept this category for human action.

What hadn't occurred to me when I wrote the aforementioned post was to ask about whether certain actions are supererogatory for God. I think the standard Christian view has been that some things God actually does are supererogatory. It's hard to see grace as anything but supererogatory. It's undeserved favor, and how can God be morally required to bestow undeserved favor? I'm not going to question that line of reasoning, so I think it's fair to say that I need to revise my view. I'm not denying that any actions are supererogatory in general. It's just that human beings ought to do the best action in any circumstance.

One way to get such a result pretty easily is to take a page from Immanuel Kant, who speaks of a divine lawgiver as the sort of being who would have no obligations to begin with. His argument is that it doesn't make any sense to think of God as having obligations, because obligations make sense only if the being with the obligations could possibly fail to do the things the obligations require them to do. (William Alston interestingly applies the same line of thought to beliefs. God directly knows every truth, and therefore he must not have beliefs, because beliefs imply that the beliefs could be false, just as obligations imply that you could fail to fulfill them.) If Kant is right, then God is never obligated to do anything, and so every action God performs is supererogatory, but it still might make sense to say that no human act is supererogatory.

But I don't think that explanation is sufficient. I want to say that some things God does necessarily result from his moral perfection, and other things are a gift that his nature doesn't make him do. I want to say that he didn't need to create and would have been perfectly good had he not created. I don't want to say God is morally better for creating, and I don't want to say God is morally better for choosing to save people from the eternal destruction we all deserve. But even if all that is true, it seems that there are some things that are inconsistent with God's nature, such as making a promise and not keeping it or allowing the universe to be intrinsically bad overall. That means that something the concept of supererogation was supposed to capture is true of God in a way that it's not true of humans, and it doesn't just result from God's having no obligations.

I think the difference has to lie in some explanation why it isn't better for God to do this thing that seems like it would result in a better world, whereas it is better for me to do things that would lead to better consequences. That difference has to lie in God's nature. God would be perfectly good without even creating, so it doesn't make God's character or nature better to create. Also, God is infinitely good, so it doesn't make the totality of things better if God creates things and doesn't just exist on his own. On the other hand, I am imperfect, and there are always ways to be better. I have an obligation to seek to be better unless I am perfect. That seems to me to be the real reason why it isn't even better for God to do better things, while it's any merely human being's obligation to do the best thing possible.

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