Sunday, April 21, 2019

Sapolsky's Deflated Darwinian Left

I have just finished acting as the discussion leader for a Liberty Fund conference in Indianapolis on Robert Sapolsky's book Behave: The Biology of Humans at Our Best and Worst.  We had a good group of 15 very smart people with a wide range of intellectual backgrounds--including primatology, evolutionary psychology, neuroscience, political science, and economics. This variety of expertise was helpful in our discussion of Sapolsky's book, which is a survey of much of the research over the past fifty years on the biology of human behavior.

My conclusion was that although Sapolsky does not say so explicitly, he is implicitly arguing for a Darwinian Left; and in doing so, he shows the weakness in that position as it was set forth in Peter Singer's The Darwinian Left in 1999.

I have written some previous posts on Sapolsky (here, here, here, here, here, here, and here) and the Darwinian Left (here and here).

In contrast to the traditional left, and particularly the Marxist left, Singer's Darwinian left does not deny the existence of a human nature, nor does it insist that human nature is inherently good, nor that human nature is infinitely malleable.  Rather, the Darwinian left accepts a Darwinian view of human nature as both selfish and social, competitive and cooperative, and as naturally inclined to dominance hierarchies and to striving for power to advance one's own interests and the interests of one's kin over others.  According to Singer, the Darwinian left will foster social cooperation while channeling competitive towards socially desirable ends through free market systems of exchange and specialization.  Because of human nature, a centrally planned socialist economy cannot work, and it will tend to become oppressively authoritarian, as it did in Stalin's Russia and Mao's China.

Singer was forced to conclude: "In some ways, this is a sharply deflated vision of the left, its utopian ideas replaced by a coolly realistic view of what can be achieved.  That is, I think, the best that we can do today."  In fact, most of his "deflated" leftism would be acceptable to conservatives and classical liberals.  For example, Singer agrees with Adam Smith about the benefits of private property, a market economy, and limited government.  Singer's dilemma, therefore, is that insofar as his Darwinian view of human nature forces him to deny leftist utopianism, he thereby denies the core of leftist thought, and so his Darwinian left looks more like a Darwinian version of conservatism or classical liberalism.

Sapolsky says that when he was a freshman at Harvard in 1975, when Edward O. Wilson's Sociobiology was published, he saw that the fierce controversy over Wilson's book was led by critics who were Marxist leftists.  "Sociobiology was accused of using biology to justify the status quo--conservative social Darwinism that implied that if societies are filled with violence, unequal distribution of resources, capitalistic stratification, male dominance, xenophobia, and so on, these things are in our nature and probably evolved for good reasons" (384). There was a "personal tinge" to this conflict, Sapolsky observes, because "that first generation of American sociobiologists were all white Southerners--Wilson, Trivers, DeVore, Hrdy; in contrast, the first generation of its loudest critics were all Northeastern, urban, Jewish leftists--Harvard's Gould, Lewontin, Beckwith, Ruth Hubbard, Princeton's Leon Kamin, and MIT's Noam Chomsky."  Since Sapolsky was himself a Northeastern, urban, Jewish leftist (405, 583, 621), one might wonder why he did not join the leftist critics of sociobiology.

Over time, Sapolsky says, the "political posturing lost steam," and this paved the way "for a sensible, middle-of-the-road middle age for the field" of sociobiology, which "does predict many broad features of behavior and social systems across species" (385).  Sapolsky's Behave looks like his attempt to provide a "middle-of-the-road" version of sociobiology without "political posturing."  And yet repeatedly in the book, he takes the side of the left in ways that lead me to conclude that he is defending a Darwinian left.

Although Sapolsky mentions Singer a few times in Behave, he is silent about Singer's Darwinian Left.  But if one compares these two books, one can see that Sapolsky faces the same problem that arises for Singer--Sapolsky would like his Darwinian biology of human behavior to support his leftist thought, but his Darwinian view of human nature forces him to accept a "sharply deflated vision of the left" that denies all the utopian ideas of the left, which forces him to accept the classical liberal ideas of the Enlightenment.

One can see how this arises in Sapolsky's account of the three epochs of human evolutionary history--the foraging epoch, the agrarian epoch, and the modern epoch.

We know that for most of human history, human beings lived as hunter-gatherers.  This was the original human condition--the state of nature--in which human nature was shaped, and therefore the debate over what this state of nature looked like has deep political implications in political philosophy and the social sciences.

Marx and Engels believed that the anthropology of Lewis Henry Morgan confirmed that the original society of hunter-gatherers was a "primitive communism" of "from each according to his ability to each according to his needs," and so the future communist revolution could be seen as a revival of that original egalitarian society.  Similarly, anthropologists like Marshall Sahlins have agreed with Rousseau's claim that our ancient foraging ancestors lived in the "original affluent society," because all of their needs were easily satisfied with little labor in a peaceful and egalitarian community.  Sahlins was one of the first leftist critics of sociobiology as promoting a crude Hobbesian view of human nature as violent and competitive rather than peaceful and cooperative.  I have written about this leftist view of the state of nature and the evidence against it (hereherehere, and here).

Sapolsky tries to agree with Sahlins in taking the side of Rousseau against Hobbes in seeing the original society of hunter-gatherers as free, peaceful, and egalitarian (305-27, 648-52).  But even as he does this, he has to concede that there is plenty of evidence against hunter-gatherer "grooviness," because hunter-gatherers were quite violent, and so they were "no tie-dyed pacifists" (319-23).  And while Margaret Mead, in 1928 in Coming of Age in Samoa, enshrined the Samoans as "the coolest, most peaceful and sexually free primates east of bonobos," Sapolsky admits that later anthropologists have shown that this was a "grossly inaccurate picture of Samoa as the Garden of Eden."

And yet even as he concedes that the Rousseauan myth of the noble savage really is only a myth, Sapolsky cannot completely give up on the idea that the ancient hunter-gatherer way of life was the best life for human beings.

Like Rousseau, Sapolsky thinks that humans were forced to leave the hunter-gatherer Garden of Eden once they began to settle down as farmers and herders, farming domesticated crops and herding domesticated animals, because this led to the invention of inequality and war.  This is why agriculture was "one of the all-time human blunders" (326).  (I have written here about James C. Scott's account of how farming eventually provided the conditions for the emergence of the first states.)

So if this was such a great blunder, then does Sapolsky propose some correction of that blunder?  Can we go back to the foraging way of life, or at least to some likeness of that egalitarian and peaceful way of life?  Or should we go ahead to more progressive forms of modern liberal order?  Or are we just stuck with the blunder of the agrarian order?

Sapolsky ridicules the idea of leaving the agrarian order and returning to the hunter-gatherer state of nature.  Commenting on Lawrence Keeley's War Before Civilization, Sapolsky observes:
"Near the end of his book, Keeley airs a pretty weird worry: 'The doctrines of the pacified past unequivocally imply that the only answer to the 'might scourge of war' is a return to tribal conditions and the destruction of all civilization.'  In other words, unless this tomfoolery of archaeologists pacifying the past stopes, people will throw away their antibiotics and microwaves, do some scarification rituals, and switch to loincloths--and where will that leave us?" (315)
Then a few pages after dismissing the possibility of going backward to the foraging epoch, Sapolsky suggests that over the past 500 years human beings have moved forward, beyond the evils of the agrarian epoch: "over the last half millennium people have arguably gotten a lot less awful to one another" (327).

Steven Pinker has argued that the reason people have gotten less awful in recent centuries is the success of the classical liberal Enlightenment.  Generally, Sapolsky criticizes Pinker and takes the side of Pinker's leftist critics.  But on this point, he has to agree that Pinker is right, and he admits that this goes against his leftist commitments: "The Left charges that this giddy overvaluing of the dead-white-male Enlightenment fuels Western neoimperialism.  My personal political instincts run in this direction.  Nonetheless, one must admit that the countries with minimal violence, extensive social safety nets, few child brides, numerous female legislators, and sacrosanct civil liberties are usually direct cultural descendants of the Enlightenment" (617).

Although the Enlightenment has not totally abolished the inequality and war invented by agrarian societies, the harmful effects of these evils have been reduced.  So, for example, one of the beneficial effects of free trade has been less war, although Sapolsky is reluctant to admit this: "'trade' is double-edged.  It's certifiably groovy when occurring between rain forest hunters; it's certifiably vile if you're protesting the WTO.  But as long as countries can wage war on distant nations, long-distance trade that makes them interdependent is a good deterrent" (621).

Sapolsky also agrees--again, somewhat reluctantly--with the classical liberal or libertarian idea that as people in free market societies interact with one another through trade, this cultivates a sense of fairness, so that they cooperate with those who are cooperative and punish those who are cheaters.  He sees this as a modern revival of the natural sense of fairness that was originally cultivated among hunter-gatherers:
"Our moral anchoring in fairness in large-scale societies is a residue and extension of our hunter-gatherer and nonhuman primate past.  This was life in small bands, where fairness was mostly driven by kin selection and easy scenarios of reciprocal altruism.  As our community size has expanded and we now mostly have one-shot interactions with unrelated strangers, our prosociality just represents an expansion of our small-band mind-set, as we use various greenbeard market shibboleths as proxies for relatedness.  I'd gladly lay down my life for two brothers, eight cousins, or a guy who is a fellow Packers fan" (499).
And while Sapolsky worries about the harmful effects of inequality in modern societies, he admits that some forms of inequality are less harmful than others.  "As with other species, human quality of life also varies with the consequences of rank inequalities--there's a big difference between the powerful getting seated at a restaurant before you and the powerful getting to behead you if the fancy strikes them" (431).  So the harm from inequality is greatly reduced in modern liberal social orders that prohibit the initiation of coercive violence by the powerful against the weak.

But at this point, it seems clear that Sapolsky's Darwinian biology of human behavior has led him to totally abandon any utopian leftism while embracing the realist view of human nature that supports classical liberalism or libertarianism.  As with Singer, Sapolsky's Darwinian left looks more like a Darwinian right.

It might seem, however, that Sapolsky does show a utopian vision in his account of how the Forest Troop of savanna baboons went through a cultural change that transformed them from Hobbesian violent animals to Rousseauian peaceful animals.  (I have previously written about this here.)  When the most aggressive males in Forest Troop died from tuberculosis in the mid-1980s, Forest Troop showed a decline in average aggression and an increase in affiliative behaviors.  In the 1990s, this social culture of peace remained, so that it had been socially transmitted to the new members of the troop.  Here, Sapolsky says, we can see "Rousseau with a tail" (648).

Previously, Irven DeVore--one of the Harvard biologists attacked by leftist critics for promoting "conservative social Darwinism"--had presented a Hobbesian view of savanna baboons.  He wrote that they "have acquired an aggressive temperament as a defense against predators, and aggressiveness cannot be turned on and off like a faucet. It is an integral part of the monkeys' personalities, so deeply rooted that it makes them potential aggressors in every situation" (quoted at 651).

Against DeVore, Sapolsky argues, the cultural transformation of the Forest Troop baboons from Hobbesian violence to Rousseauian peace shows the "social plasticity" that allows them to transcend their baboon nature.  What Sapolsky here calls "social plasticity" seems to correspond to what Rousseau called "perfectibility."  So what Sapolsky sees in Forest Troop is a "baboon utopia" ("A Natural History of Peace," Foreign Affairs 85 [Jan./Feb. 2006]: 120).  And if baboons can achieve a Rousseauian utopia, then surely human beings can do it too.

And yet Sapolsky contradicts himself in other writings about the cultural change in Forest Troop.  He reports that after the change, there were "similar overall rates of aggressive interactions" compared with another baboon troop (Sapolsky and Lisa Share, "A Pacific Culture among Wild Baboons: Its Emergence and Transmission," PLoS Biology 2 [April 2004], 535).  He also reports that Forest Troop showed "no male-male reconciliation" after fights (ibid., 536).  He also concludes that "there are not infinite amounts of social plasticity in a primate system." And because of those natural limits on social plasticity, Forest Troop's social culture "was not an unrecognizably different utopia" ("Rousseau with a Tail: Maintaining a Tradition of Peace Among Baboons," in Douglas P. Fry, ed., War, Peace, and Human Nature [Oxford: Oxford Universtiy Press, 2013], 436).  It seems that baboon culture is constrained by baboon nature, and so a "baboon utopia" is not really possible.

Thursday, April 11, 2019

Are We Animals? The Conference on "Science, Human Nature, and Public Policy" at Saint Vincent College

On April 5-6, I participated in a conference on "Science, Human Nature, and Public Policy," sponsored by the Center for Political and Economic Thought at Saint Vincent College in Latrobe, Pennsylvania.

I  was especially happy to visit Saint Vincent for the first time because one of the best of my former Ph.D. students--Jason Jividen--has been teaching there for some years.  This also gave me the chance to pay homage to those famous residents of Latrobe--Arnold Palmer and Fred Rogers--and also to sneer while driving past The Trump House (Google it).

With nine speakers delivering lectures on a wide range of topics, it was sometimes hard to see the thematic coherence of the conference.  But by the second day, I began to see some recurrent themes; and when the last speaker--Melissa Moschella--spoke in favor of "animalism," I saw the question of animalism as one common theme in many of the lectures, although Moschella was the only speaker who used the term.

Animalism is the term used by some contemporary philosophers over the past thirty years for a seemingly simple idea: We are animals.  We are, each of us, an animal of a certain kind, the kind that is called Homo sapiens.  In contrast to those dualists who assert that we are not just animals but persons, and that our personal identity transcends our animal bodies, animalists assert that every human person is a human animal.  We are self-aware thinking beings with a first-person perspective on the world--each of us can say "I"--but this personal experience of subjective self-consciousness and decision making arises from the psychological properties of the human animal.  Not every human animal is a human person, because a human fetus is an animal, but it lacks the subjective self-awareness of a person; and a human animal that falls into a persistent vegetative state without any capacity for self-conscious thought is no longer a person.  Moreover, the death of the human animal body brings the death of the human mind or soul, so there is no personal immortality separated from an animal body.

One might imagine, however, that there could be personal immortality if dead animal bodies could be resurrected in such a way as to sustain personal minds.  The resurrection of Jesus shows this.  Christian theologians like Thomas Aquinas have speculated on what this resurrected human animal body would be like.  (I have written about this here,  here, and here.)

Animalism does not necessarily deny the possibility of persons that are not animals, because we might imagine a capacity for personal experience that does not depend on animal bodies--such as angels, deities, or robots.

A good presentation of animalism is Stephen Blatti's article on "Animalism" (2014) in the online Stanford Encyclopedia of Philosophy and his coedited book (with Paul Snowden)--Animalism: New Essays on Persons, Animals, and Identity (2016).  As Blatti indicates, many of the objections to animalism depend on imaginative thought experiments--as is often the case with analytic philosophers--that supposedly show how human persons could be separated from their animal bodies.  So, imagine, for example, that we could transplant a person's brain or head from one body to another, and imagine that the thoughts and memories of that self-conscious person could then be attached to a new animal body, and the old animal body could be destroyed.  Does this show that the human person is not identical to any particular animal body?

But there's no proof here that such a transplant could be successful--that a brain could be severed from its body without destroying personal identity.  Moreover, this ignores the fact that a brain is itself an embodied animal organism; and so a mind that depends on a brain is not fully disembodied.

There is at least one rare human condition, however, that does seem to deny the animalist's claim that each of us is identical to a particular human animal--a rare type of conjoined twinning called dicephalus--in which twins are conjoined below the neck, so that we see two distinct heads on one body, with two brains supporting two distinct mental lives.  This looks like two persons with only one animal body.

                               Conjoined Twins Abby and Britany Hensel at Their Wedding

Abby and Britany look like two separate persons sharing one animal body.  So does this show that personal identity is not animal?  While Abby and Britany are clearly sharing one body, other conjoined twins--like the famous "Siamese twins" Chang and Eng Bunker--have two bodies joined by only a small belt of flesh at the waist.  Conjoined twins thus raise deep questions about the anatomical biology of human nature (Dreger 2004; Quigley 2003).

Actually, although it happens rarely,  lots of nonhuman animals have been born with two heads--including cats, cattle, snakes, turtles, and more.  So does this show that their personality is separated from their animality?

Stephan Blatti (2007) argues that dicephalic twins are a "borderline case" of the human animal--with more than one but less than two complete animals.  This need not be seen as a counterexample to the animalist's claim that each of us is identical to a human animal.

Here I will follow this question of animalism as it came up in the nine lectures at the Saint Vincent conference.

Blombos Cave or Bethlelem? Science, Theology, and Human Nature
Christopher Baglow, the University of Notre Dame

Baglow is the Director of the Science and Religion Initiative at Notre Dame.  His lecture was to answer one question: What do science and faith teach us about human origins and human nature?

Some scientists would point us back to Blombos Cave on the southeast coast of South Africa, where archaeologists have found evidence of behavioral changes among Middle Stone Age human ancestors dating to 100,000 to 70,000 years ago.

                                                Engraved Ochre found in Blombos Cave

Although it's hard to interpret its meaning, the abstract patterns of engraving on ochre look like the oldest evidence of symbolic artifice.  This capacity for symbolic abstraction has been identified by some evolutionary scientists as the distinctive human difference: human beings are animals, but they have naturally evolved from primate ancestors to be the human kind of animal that is capable of symbolic culture, which makes possible human art, science, philosophy, and religion.  (I have written about the uniqueness of human symbolic culture here.)

Baglow asked: Is this Adam?  If these ancient human ancestors in Blombos Cave were the first truly human beings, because of their capacity for symbolic thought, Jews, Christians, and Muslims might say that they correspond to Adam and Eve of the Genesis story of Creation.  The problem, of course, is that the scientists studying the artifacts at Blombos Cave do not see any evidence there for God's creation of Adam and Eve in God's image.

But then, some evolutionary psychologists who are also Christians (like Justin Barrett) would say that what we see here is the natural emergence of Homo religiosus--the first animal capable of believing in and longing for God through symbolic thought.  A theistic evolutionist could say that God used a natural evolutionary process to create human beings in His Image.  (Some of my posts on these points are herehere, and here.)

Baglow gave us a manifestation of this evolved human capacity for religious symbolism by giving us a Christian theological interpretation of human nature as fulfilled in Jesus Christ: to become fully human is to be open to Christ as both fully human and fully divine--as Adam was before the fall into sin, as the embodied image of God.

As he did this, he also affirmed Thomas Aquinas's animalism--Aquinas's Aristotelian insistence that human beings really are animals, even if animals of a special human kind, and that the human mind or soul is an activity of the human animal.

Baglow did not speak about the contradiction in Aquinas's account of how the soul arises in human biology--claiming that this arises through a fully natural embryological process, but then also claiming that this requires a miraculous infusion of soul by God.  I wrote about this in my paper for this conference, and in a post here.

Why Intelligent Design Is Not A Good Way to Challenge the Hegemony of Naturalism in Public Life: A Thomistic Corrective
Francis Beckwith, Baylor University

Beckwith is a professor of philosophy at Baylor.  Originally, he was hired at Baylor to be the Director of the J. M. Dawson Institute of Church-State Studies.  Members of the Dawson family signed a letter to the President of Baylor protesting that since Beckwith was a Fellow of the Discovery Institute--the leading organization promoting Intelligent Design Theory--he was opposed to J. M. Dawson's idea of separating church and state, because he was advocating the teaching of ID as science in public schools, which was an unconstitutional violation of the separation of church and state.  They asked that he be terminated.  When he was denied tenure at Baylor, he appealed the decision and won.

It stirred great interest, therefore, when Beckwith openly rejected ID in a series of blog posts at the Biologos website, which promotes theistic evolution.  He argued that he had never fully embraced ID, although he had defended the constitutionality of teaching ID in high school biology classes.  He explained that the Catholic theology of Thomas Aquinas had persuaded him that ID was theologically mistaken: ID assumes that natural causes compete with divine action, because divine action requires a miraculous break in the natural order of causes.  In fact, God can act through the secondary causes of nature--including natural evolution--that depend ultimately on God as First Cause.  William Dembski and Michael Behe imply that God is not First Cause, because divine intelligent design is separated from nature and chance.  In affirming that God acts through nature and chance, Beckwith has adopted theistic evolution as opposed to ID.

In his lecture at Saint Vincent, Beckwith repeated these points, which are some of the same points that I have made against ID (here and here).

Apparently, Beckwith would agree with those theistic evolutionists who think that God could have created human beings in His Image through the natural evolution of animal species, which would support animalism.  He did not indicate, however, whether this would explain the evolution of the soul in the brain through the emergent evolution of the primate brain, which has been my argument (here).  Nor did he indicate how his theistic evolution would allow for those miracles necessary for Christian faith--such as the Resurrection and Second Coming of Christ.

Science and Slavery in Lincoln's "Lecture on Discovery and Inventions"
Diana Schaub, Loyola University, Maryland

A professor of political science, Schaub offered an interpretation of Abraham Lincoln's "Lecture on Discovery and Inventions."  Lincoln's account of human history as a progressive advance through technological inventions and discoveries--such as language, writing, the printing press, the discovery of America, and the steam engine--sounds a lot like Francis Bacon's project for progress through the human mastery of nature.

But as someone influenced by Leon Kass and other conservative critics of modern science and technology, Schaub wanted to read Lincoln as rejecting Baconian science.  She did this by indicating that at least some of the inventions mentioned by Lincoln--such as "the invention of the negro" at the start of the trans-Atlantic slave trade--are morally harmful.  Therefore, she concluded, Lincoln teaches us that technological progress is not necessarily moral progress, and he hints that God will punish us for our immoral inventions like slavery.

Her argument was unpersuasive, because she played down the general Baconian tone of moral and intellectual progress in Lincoln's lecture.  She ignored the fact that while this lecture has more Biblical references than any other speech by Lincoln, Lincoln uses the Bible as an anthropological history, and he ignores or mocks the Bible's religious teaching.  So, for example, here is how Lincoln begins the lecture:
"All creation is a mine, and every man, a miner."
"The whole earth, and all within it, upon it, and round about it, including himself, in his physical, moral, and intellectual nature, and his susceptibilities, are the infinitely various 'leads' from which, man, from the first, was to dig out his destiny."
"In the beginning, the mine was unopened, and the miner stood naked, and knowledgeless, upon it."
Notice that "in the beginning," there is no divine creation of man, and man depends totally on himself "to dig out his destiny" without any guidance from God.

Considering the themes of this conference, it was surprising that Schaub said nothing about Lincoln's acceptance of the idea of evolution--as developed by Robert Chambers--and nothing about the many ideas that Lincoln shared with Darwin.  I have written about this here, here, and here.

In his "Lecture on Discoveries and Inventions," his "Address to the Wisconsin State Agricultural Society," and in his meeting with some American Indian chiefs, Lincoln laid out his conception of evolution as moving through three stages of human society--from foraging societies to agrarian societies to societies based on commercial exchange and free labor (Arnhart 1985, 2012; Miller 2001).  Like Darwin, Lincoln believed that human beings were unique in the animal world because of the human capacity for symbolic speech, which allowed for collective learning in the artful domination of nature for the material, moral, and intellectual improvement of human life.  Originally, all human beings lived by foraging, a way of life still manifested in Lincoln's day among some of the Native American Indians.  The invention of agriculture supported human civilization as an advance beyond the savage life of foragers.  But, despite the progress in civilization in agrarian states, such states were founded on slavery and other forms of coerced labor, so that rulers lived by exploiting peasant labor.  Lincoln saw that the Industrial Revolution based on commercial exchange and free labor was bringing a new revolution in human cultural evolution that promised the physical, moral, and intellectual liberation of labor.  He saw the abolition of slavery as a crucial move toward this new state of society, which would bring a "new birth of freedom" to which all human beings would have a fair chance in the "race of life."  Schaub said almost nothing about this Lincolnian vision of human cultural evolution.

On the Margin: Out of the Mainstream in Liberal Societies
Amy Wax, the University of Pennsylvania Law School

In the fall of 2017, Amy Wax, a professor at Penn Law School, started an intense debate at her school and around the country in response to her op-ed article in the Philadelphia Inquirer entitled "Paying the Price for Breakdown of the Country's Bourgeois Culture."  She attributed many of the social ills in the United States today to the failure to enforce the bourgeois norms of conduct that prevailed in the United States up to the early 1960s.  "All cultures are not equal,"  she declared.  This was enough to provoke the charge that she was a white racist elitist!  This then became part of the general debate over whether the liberal principle of freedom of speech and thought should include freedom for cultural conservatives to speak in favor of social norms that support the moral condemnation of those groups that reject those norms.

Wax's lecture was an extension of what she had said in her article and in her responses to her critics.  She began by agreeing with Alexis de Tocqueville about the mania for equality in America.  While she accepted the justice of equality of opportunity as fundamental for any good liberal social order, she worried that equality of opportunity was being replaced by equality of outcomes, so that every group of people demands recognition for its identity and freedom from any stigmatizing disapproval.

Every healthy society requires norms of good conduct, she observed, and the enforcement of those norms will inevitably create social ranking of people into higher and lower classes.  Thus, in a bourgeois liberal society, those who exhibit (or at least profess) the bourgeois norms will be respected, and those who don't will not.  Of course, a liberal society must show some tolerance for deviant behavior, but tolerance is not endorsement, and so we will allow some deviance but only within bounds and with moral disapproval.

In her defense of the need for bourgeois culture in a liberal society, Wax could have deepened her argument by rooting it in a science of human nature that explains the evolution of bourgeois liberalism as symbolic niche construction.  She came close to doing that in her references to some of Charles Murray's reasoning in The Bell Curve and Coming Apart, in which he shows how the bourgeois virtues satisfy the natural desires of our evolved human nature.  I have written about these points hereherehere, and here.

In her article for the Inquirer, but not in her lecture, Wax made clear her agreement with Murray that the breakdown of bourgeois culture was limited to a few groups of people--some working-class whites and some inner-city blacks--and that the upper classes and upper-middle classes were still practicing the bourgeois virtues.  She wrote in her article: "Among those who currently follow the old precepts, regardless of their level of education or affluence, the homicide rate is tiny, opioid addiction is rare, and poverty rates are low."

Wax should emphasize more than she does that except for a few groups, the indicators of social disorder that rose in the late 1960s and 1970s have dropped dramatically in recent decades.  For example, in her article, she says that "homicidal violence plagues inner cities."  But she doesn't note that homicide rates have been dropping since the 1980s.  Here are the deaths by homicide per 100,000 resident population in the United States: 5.1 in 1950, 10.4 in 1980, and 5.1 in 2014.  So homicide has fallen to the levels of the 1950s.  Consider also the divorce rate in the U.S. measured as divorces per 1,000 people: 4.3 in 1946, 2.2 in 1957, 5.3 in 1980, and 2.8 in 2010.  So after peaking in 1980, the divorce rate has dropped almost to the level of 1957, and it's actually lower than in 1946.

Moreover, some groups of Americans--such as African-Americans and women--are much better off today than they were in the 1950s.  In her article, Wax says that "male working-age labor-force participation is at Depression-era lows."  That is true, but it is also true that women's working-age labor-force participation is higher than it has ever been.  She says that "many college students lack basic skills, and high school students rank below those from two dozen other countries."  But this ignores the fact that there has been a stunning increase in educational achievement for many Americans, and particularly women.  Here are the percentages of the population with 4 years or more of college education: 5.2 percent for women and 7.3 percent for men in 1950, 6.7 percent for women and 11.4 percent for men in 1962, 35.3 percent for women and 34.6 percent for men in 2018.

Contrary to the assertions of recent critics of liberalism (like Patrick Deneen and Rod Dreher), these and other social indicators prove that bourgeois liberalism has succeeded in improving the lives of most human beings who live in liberal social orders.

Schools, Religion, and the New Science: "Education and the State" Revisited
Catherine Pakaluk, The Catholic University of America

Thomas Aquinas claims that like other animals whose offspring require parental care, human parents are naturally inclined by instinct to care for their children by providing for their existence, their nourishment, and their education.  And thus parental care of children is part of natural law.

Throughout most of human history, parents have been responsible for the education of children.  But beginning in the 19th century, in Europe and North America, there arose the first state-sponsored and compulsory mass education systems.  For the first time, parents were compelled to send their children to government schools for five to ten years with a prescribed curriculum (usually reading, writing, and arithmetic) and licensed teachers.  For the past 150 years, this has been a great experiment that has sparked a debate over its successes and failures.

Pakaluk is a professor of economics in the Business School at Catholic University of America who studies the economics of education and religion.  She is a critic of compulsory state education who thinks that parents should have the freedom to supervise the education of their children either through home-schooling or through choosing the school where they will send their children.

In her lecture, she elaborated her argument as a reconsideration of E. G. West's book Education and the State, which was first published in 1965.  West's book was a critical study of the history of public schooling in Great Britain, beginning with the Elementary Education Act of 1870 (also called Forster's Education Act), which set the framework for the schooling of all children between the ages of 5 and 12.  Eventually, this became a system of compulsory education with a curriculum prescribed by government.  The main argument for this system was that parents could not be trusted to educate their children voluntarily.  But West claimed that in 1870 most children were already being educated by their parents through voluntary schools supported by churches and private philanthropy.  Moreover, he argued that private voluntary schooling is probably better for children.  West then proposed a voucher system to replace the system of compulsory government schooling.

Pakaluk endorsed West's argument and brought it up to date by pointing out that there was little empirical evidence to support the success of public education and a lot of evidence that private voluntary schooling supervised by parents was better for educating children.  Furthermore, she emphasized the importance of religious education, which is not provided in public schools.

Implicitly, Pakaluk was recommending a return to Aquinas's natural law view of parents as the natural educators of their children.

The Gold Standard Family: How Science Tells Us Marriage Still Matters in the Twenty-First Century and What Public Policy Can Do To Strengthen It
W. Bradford Wilcox, the University of Virginia

Brad Wilcox is a professor of sociology and Director of the National Marriage Project at the University of Virginia.  His lecture was a summary of the social science research showing that the "gold standard family"--two married parents committed to one another in a stable household--is the best family for the couple and for the children.

Why Marriage Matters: Jonathan Rauch Interviews Amy Wax, Brad Wilcox, and Elizabeth Marquardt

Wilcox spoke against two "myths" about marriage.  The first is the "soulmate myth"--the idea that people today marry only for a personally satisfying romance, and so they should divorce as soon as the romance fades.  The second is the "kids will be okay myth"--the idea that as long as the kids are loved, it does not matter if their parents are unmarried.

In fact, Wilcox argued, the children are more likely to flourish if their parents are in a "gold standard marriage," where husband and wife are married and committed to fidelity and a stable household.  Divorce elevates the risk of harm to the children.  But even worse than divorce is cohabitation, where there are two adults in the household, but they're unmarried.  In some ways, Wilcox claimed, the kids whose parents are divorced are the lucky ones!  The kids of a single mom are much better off than the kids of a mom who have a live-in boyfriend.  The risk of child abuse and neglect is elevated in cohabitation.

We should keep in mind, however, as Wilcox indicated, is that the superiority of the gold standard family for children as compared with other family structures is only a difference in the degree of risk on average.  Most children turn out fine regardless of the structure of the family.  But still the gold standard family is more likely to favor good outcomes for the children.

The gold standard marriage is also good for men and women even when they have no children, as indicated by the evidence presented by Linda Waite and Maggie Gallagher (in The Case for Marriage) showing that married people are both physically and mentally healthier than unmarried people.  This indicates that conjugal bonding is a natural good of marriage even without the natural good of parental care.

Wilcox offered some recommendations for public policies that might promote marriage--such as, for example, changing the tax laws to favor marriage.  But his policy proposals seemed weak.  And he suggested that the best support for marriage comes not from government but from culture--from socially supported norms that teach people that monogamous marriages built around couples permanently and faithfully committed to one another is good for everyone.

In the question and answer period, Wilcox was asked about the social science research on same-sex marriage.  He said that there was some evidence on both sides of the debate over same-sex marriage, but there wasn't enough evidence to resolve the debate.  Same-sex marriage has only recently be legalized, and so, he observed, we will need at least 10 years to see how this experiment plays out.  This supported my argument in my lecture that, indeed, we will need more experience with same-sex marriage before we have enough evidence to see whether same-sex marriage can succeed.

It's noteworthy that in the video above, Wilcox was interviewed by Jonathan Rauch, one of the leading gay men promoting same-sex marriage, and the interview was sponsored by the Institute for American Values, which was founded by David Blankenhorn.  Blankenhorn was once a leading opponent of same-sex marriage, but then he changed his mind when he decided that if marriage is good, it's good for both straights and gays.  I have written about this here.

In my lecture, I pointed out that the best proponents of same-sex marriage--like Rauch and John Corvino--agree with Wilcox about the "gold standard family" being the ideal.  They agree that this is the best kind of family for both adults and children.  But then they ask: When this ideal is unattainable, what's the best we can do?  They argue that same-sex marriages can at least approximate heterosexual marriages in satisfying the two natural ends of marriage--conjugal bonding and parental care.  Once we have more experience with legalized same-sex marriages, we will have enough evidence to decide whether this is true or not.

Gender Trouble, Marriage Trouble?
Mark Regnerus, the University of Texas at Austin

I have written about Regnerus's research on comparing gay and lesbian parenting with heterosexual parenting in some recent posts.  In this lecture, he spoke about his present research involving a world survey of how Christian young adults around the world view marriage.  He is interviewing hundreds of young churchgoers in seven different countries.

What he sees is that like other young adults today, these young Christians have moved away from the traditional "foundation model" of marriage to a new "capstone model."  Traditionally, many young adults have seen marriage as a "foundation" for their life: they would marry at a young age--before their mid-20s--so that they and their spouses could work together in building a good life, which meant that they would start out relatively poor, but with the expectation that they would accumulate resources and become economically and socially successful over time.  Now, many young adults see marriage as a "capstone" of their life: they don't want to start a marriage in poverty, and so they delay getting marriage until they have successful careers, and then they can be comfortable in marriage.  This is part of the explanation for the decline in marriage rates and the delay in getting married.

Another part of the traditional foundation model of marriage was the expectation that marriage would be organized as a division of labor, with the wife working more as a housekeeper and mother and the husband working more outside the home as the breadwinner.  The new view of marriage is that both spouses should have careers outside the home, so that the wife contributes as much to the household income as the husband.

This new view assumes "gender flexibility": instead of the traditional division of labor based on men and women having different gender roles, now men and women become interchangeable.  But, then, Regnerus suggested, it's not clear that men and women need one another, and so marriage becomes less important to them.  One can see here the theme in much of Regnerus's research--that modern views of human equality lead to the breakdown of the traditional family that was organized around traditional gender roles for men and women.

One of the traditional gender norms for marriage was that the share of household income earned by the husband should be greater than that of the wife, because the husband should be the primary breadwinner, and the wife the primary housekeeper.  But now as women have increased their participation in the labor force in many societies, wives can contribute more to household income, and sometimes the wife's income can exceed the husband's.

Regnerus suggested that this departure from traditional gender norms has created trouble for marriage, as indicated by the research of some economists (Bertrand et al. 2015) studying the causes and consequences of relative income within households.  They showed that in the United States, the distribution of the share of household income earned by the wife drops dramatically once it exceeds one-half.  That is to say, it seems that many couples feel an aversion to the wife earning more than the husband.  Indeed, as the economists indicate, some surveys show about 38 percent of U.S. respondents agreeing with the statement that "if a woman earns more money than her husband, it's almost certain to cause problems."

The economists offer some evidence indicating that some of the decline in marriage rates comes from women earning more than men, because men and women don't want to marry if the man would earn less than the woman.  The economists also show that in households where the wife earns more than her husband, the wife does more housework than the husband, as if she's trying to restore traditional identity norms.  And where the wife has the potential to earn more than her husband, she might choose to earn less than her potential.  The economists also indicated that in households where the wife earns more than the husband, there is a higher likelihood of divorce.

Do we see here one of the natural sex differences in the human animal--that men tend to have a stronger drive for dominance than do women, so that husbands need to take pride in their earning more income than their wives?  Does a successful marriage depend on husbands and wives taking different roles that conform to natural sex differences?  Regnerus seemed to be saying yes.

But notice that the majority of the respondents in that survey did not agree with the idea that a woman earning more than her husband will cause problems for the marriage.  The economists report that those answering in this way tend to be more highly educated than those endorsing traditional gender roles.  And as Charles Murray and others have noted, the more highly educated people tend to have more stable households and lower divorce rates.  Does this suggest that a modern education can promote sexual equality in gender roles?

The Darwinian and Thomistic Natural Law of Justice Kennedy's Same-Sex Marriage Opinion
Larry Arnhart, Northern Illinois University

Having written some recent posts about my paper for this conference, I don't need to add much here about my lecture, which was a brief summary of my paper.

If we agree with Aquinas that the natural law of marriage supports two natural ends for the human animal--conjugal bonding and parental care--and if same-sex marriage can achieve those same natural ends for homosexual couples without harming children or weakening heterosexual marriage, then there is a natural law argument for same-sex marriage.  But even in making this argument, I observed, one can concede that the stable marriage of husband and wife caring for their biological children is still the "gold standard family," and that same-sex marriage can be justified only as some approximation or likeness to that ideal.

When I finished my lecture, about a third of all the people in the room raised their hands to ask a question.  This started a lively discussion.  I was surprised by the friendly tone.  Even though it was obvious that most of the audience disagreed with my position, I had the impression that many people found my arguments persuasive, even if not convincing.

This confirms my sense that most of the Christian conservatives who have opposed same-sex marriage are now conceding that they have lost the debate, because their own arguments for the goodness of marriage support the conclusion that marriage is good for homosexuals as well as heterosexuals.

The only undecided question is how many homosexuals will choose to marry, and how many will establish stable households.  It is possible that most homosexuals will have no interest in marriage, and most of those who do marry will have no interest in caring for children.

Trapped in the Wrong Body? Dualism, Transgender Identity Claims, and the False Hope of Gender Reassignment Therapies
Melissa Moschella, The Catholic University of America

A popular explanation of transgender people is that they feel "trapped in the wrong body."  These people have a personal gender identity that conflicts with the biological sexual identity of their bodies, and so they might seek hormonal and surgical treatment to change the sexual identity of their bodies to conform to their gender identity.  It has now become a standard medical treatment for "gender dysphoria" to provide procedures for changing one's sex to coincide with one's preferred gender, so that men can become women, and women can become men.

Speaking as a professor of philosophy, Melissa Moschella argued against this "wrong body" narrative as based on a false dualist view of human nature that should be rejected in favor of an animalist view. Dualism is false because the body is intrinsic to our personal identity. Animalism rightly sees that our personal sexual identity as male or female is rooted in the biological identity of our body.  We are our animal bodies.  And therefore men are those with male bodies, and women are those with female bodies.  It's impossible to change one's biological sex, because biological sex is impressed on our body and brain early in fetal and neonatal life.

Gender dysphoria, she argued, is not a medical problem requiring physiological or surgical treatment but a psychological problem requiring psychiatric counseling.  Those with gender dysphoria are suffering from the mental delusion that their mental sexual identity differs from the sexual identity of their body.  So doctors who try to help them undergo a biological sex change are not curing them but rather supporting their delusional disorder.  This explains why although patients often feel better initially after sex-change procedures, later on they often become depressed, anxious, and suicidal.

Moschella made a comparison with anorexia. The cure for anorexia is not liposuction, although the patient might initially feel better, because the problem is not obesity but the psychological delusion of being too obese.

Moschella also pointed out the incoherence in the "wrong body" idea.  It is said that a person's gender identity is in the mind not in the body.  But then it is said that the sex of the body must be changed to be in harmony with the true gender identity of the person, which concedes that the sex of the body really is essential for sexual identity.

Moschella seemed to be agreeing with Dr. Paul McHugh at Johns Hopkins University Hospital, who was responsible for shutting down the sex-change treatment program that had once been supervised by Dr. John Money.  Money was the one who invented the idea of "gender identity" as different from "sex identity," with the thought that "gender" is a mental or social construction that need not conform to biological nature.  This has supported the claim that while animals have "sex," only humans have "gender."  Moschella's animalism seems to deny the gender/sex dichotomy started by Money.

It should be said, however, that biological nature does sometimes throw up anomalous cases that cannot be clearly identified as male or female--the most obvious case being those who are born as true hermaphrodites, who combine male and female traits.  In response to a question about such cases of intersexuality, Moschella conceded that these cases show a biological disorder creating confusion about biological sex identity, but gender dysphoria is not an intersexual anomaly of nature like this.

For Moschella to sustain this claim, she would have to refute the "developmental mismatch" theory of gender dysphoria.  According to this theory, in utero the sexual differentiation of the genitals occurs separately and earlier than the sexual differentiation of the brain, so that it is possible for the sexual identity of the body to differ from the sexual identity of the brain (Bao and Swaab 2011; Williams 2018).  This is not a dualist theory that denies animalism, because both the body and the brain are biological realities of the human animal.  As far as I can tell, the evidence for this developmental mismatch theory is disputed.  But Moschella would need to at least respond to this line of reasoning.

My argument here is that the central tendency of animal biology is to distinguish the sexual identity of males and females as determined by their complementarity for reproduction.  But while this holds "for the most part," there are exceptional cases in nature where the bipolarity of male and female becomes confused.

I have written a series of posts on sexual identity, hermaphroditism, and transgenderism herehere, and here.

As you can see, I left Latrobe pondering many questions about the nature of the human animal and what it might mean for public policy.  (I am still struggling to get that image of The Trump House out of my head!)


Arnhart, Larry. 1985. "Abraham Lincoln's Biblical Liberalism." St. John's Review 36 (Summer 1985): 25-40.

Arnhart, Larry. 2012. "Biopolitical Science." In James E. Fleming and Sanford Levinson, eds., Evolution and Morality, 221-265. New York: New York University Press.

Bao, Ai-Min, and Dick F. Swaab. 2011. "Sexual Differentiation of the Human Brain: Relation to Gender Identity, Sexual Orientation, and Neuropsychiatric Disorders." Frontiers in Neuroendocrinology 32 (April): 214-226.

Bertrand, Marianne, Emir Kamenica, and Jessica Pan. 2015. "Gender Identity and Relative Income Within Households." The Quarterly Journal of Economics 130: 571-614.

Blatti, Stephan. 2007. "Animalism, Dicephalus, and Borderline Cases." Philosophical Psychology 20: 595-608.

Blatti, Stephan. 2014. "Animalism." The Stanford Encyclopedia of Philosophy.

Blatti, Stephan, and Paul Snowden, eds. 2016. Animalism: New Essays on Persons, Animals, and Identity. Oxford: Oxford University Press.

Dreger, Alice Domurat. 2004. One of Us: Conjoined Twins and the Future of Normal. Cambridge, MA: Harvard University Press.

Miller, Eugene. 2001. "Democratic Statecraft and Technological Advance: Abraham Lincoln's Reflections on 'Discoveries and Inventions,'" Review of Politics 63: 485-515.

Quigley, Christine. 2003. Conjoined Twins: An Historical, Biological, and Ethical Issues Encyclopedia. Jefferson, NC: McFarland.

West, E. G. 2010. Education and the State. Revised edition. Indianapolis: Liberty Fund.

Williams, Shawna. 2018. "Are the Brains of Transgender People Different from Those of Cisgender People?" The Scientist (March).

Tuesday, April 02, 2019

The Natural Law of Same-Sex Marriage: The Corvino-Gallagher Debate

The debate over same-sex marriage has generated such intense emotions that it has been hard for the people on opposite sides of this debate to speak with one another in the civil manner required for them to understand one another's arguments.  It is refreshing, therefore, to see John Corvino and Maggie Gallagher--in their book Debating Same-Sex Marriage (Oxford, 2012)--striving not to "achieve agreement" but to "achieve disagreement": "Achieving disagreement is the process whereby both sides understand the others' arguments and understand why they disagree" (Gallagher, 91).

They are good representatives of the opposing sides.  Corvino is a professor of philosophy at Wayne State University who for many years has been a leading public speaker and writer offering a philosophic defense of the moral dignity of homosexuality.  Gallagher is the cofounder of the National Organization for Marriage, which has been the preeminent organization in the United States fighting to preserve marriage exclusively as the union of one husband and one wife jointly caring for their children.

Some of us might think that this debate has been settled in recent years in favor of same-sex marriage by the decision in Obergefell in 2015 and by other legal decisions around the world legalizing gay marriage.  On the contrary, now that same-sex marriage is legal in many countries, for the first time in human history, we will see the consequences of this momentous change in marriage and family law, which will provoke a continuing debate over whether this was a good decision or not.

A good debate requires both agreement and disagreement.  If the debaters cannot agree on anything, it's impossible for them to talk to one another.  But if they agree about almost everything, then there's no debate.  The debate between Corvino and Gallagher is a good one, because there's enough agreement and disagreement for them to have a contentious but fruitful conversation.

They agree about the importance of marriage, and so they both reject the arguments of those who think abolishing the institution of marriage would be an improvement in human life.  But they disagree about the nature of marriage itself.  I stress the word nature here, because they agree that marriage is rooted in human nature--in certain fundamental natural human desires that are universal to all human societies.  But they disagree in how they understand those natural ends of marriage.  Therefore, this is a debate over the natural law of marriage.

According to Thomas Aquinas, the natural law of marriage points human beings to two natural ends.  The primary end of marriage is to secure parental care of children.  The secondary end of marriage is the conjugal fidelity of husband and wife.  Corvino and Gallagher agree with this understanding of the nature of marriage; but while Corvino believes that this is compatible with extending the idea of marriage to include same-sex marriage, Gallagher denies this, because she believes that this natural law of marriage means that same-sex marriage is not real marriage.  To say that two men or two women can be married and achieve these two natural ends of marriage--conjugal fidelity and parental care--is a lie.

Children are most likely to flourish, Gallagher argues, when they are reared by their biological father and biological mother in a stable and low-conflict household, where the father and mother are in a life-long marriage that is sexually exclusive, so that it is never disrupted by adultery or divorce.  This is based in the biological reality that the sexual intercourse of a man and a women produces babies, that those babies naturally long for both a mother and a father to care for them, and that while a heterosexual couple in a life-long monogamous marriage can provide this, a gay male couple or a lesbian couple cannot.  In a gay or lesbian household with children, the children cannot have a biological connection to both parents, and so the children will always be motherless, fatherless, or both.  Moreover, homosexuals--and especially gay men--have a strong propensity to promiscuity that makes it hard for them to sustain stable married households, and most homosexuals have no interest in parenting children.  Consequently, legalizing same-sex marriage will harm the children who come under the care of gay or lesbian parents.

This will also weaken heterosexual marriage by teaching people that marriage is more about satisfying the personal desires of adults than about the needs of children, which will promote adultery, divorce, promiscuity, step-parenting, single-parenting, and infertility.  This will be bad for both children and adults, because it will frustrate the natural human longings for conjugal fidelity and parental care of children.

Remarkably, Corvino agrees with Gallagher on some of these points.  He agrees that securing the parental care of children is one of the primary functions of marriage.  He also agrees that children, on average, do best when they are reared by their own married biological parents.  And thus he agrees that gay or lesbian parenting is not ideal for children, on average.  He also agrees that many homosexuals--particularly, gay men--are so promiscuous that they have little interest in monogamous marriage; and of those who do want to be married, most do not want to care for children.

And yet, even if one agrees with all of this, he argues, it does not follow from this that therefore same-sex marriage is not real marriage as rooted in human nature.  First, one should see that although parental care is one of the primary functions of marriage, it is not the only one.  What Aquinas identifies as conjugal fidelity is what Corvino calls the "mutual-lifelong-caregiving function" of marriage:
"Marriage promotes mutual lifelong caregiving in a way that no other institution does, a task that is important for gay and straight citizens alike.  Put simply, it builds family.  In achieving this aim, marriage also accomplishes various related aims: it settles the young, assisting their transition into adulthood; it provides a safe harbor for sexual intimacy; and it creates a stable environment for any children who might arrive or already be present" (20).
But while Gallagher sometimes suggests that a marriage without parenting is not real marriage, Corvino insists that mutual lifelong caregiving can stand by itself as the natural function of a marriage, even without children.  So a heterosexual couple who marry for the sake of conjugal bonding have a real marriage, even when they are unable or unwilling to have children.  And since the same is true for a same-sex couple, there is no reason not to recognize a same-sex marriage without children as a real marriage.

Gallagher and other opponents of same-sex marriage like Robert George have tried to argue that only heterosexual marriages are real marriages because they are oriented to reproduction, which is the natural end of marriage.  The biological complementarity of a man and a woman as having bodies that can be joined in coitus to produce a baby is the natural ground for marriage as directed to reproduction.  Gay male couples and lesbian couples lack this biological complementarity for reproduction, and thus they lack the natural ground for marriage.

Proponents of gay marriage like Corvino have objected that since many married heterosexual couples do not have children, this shows that parental care is not essential for a marriage.  Gallagher and George have responded that even when married heterosexual couples do not have children, their sexual intercourse is still "of a reproductive type."  The thought seems to be that the heterosexual insertion of a penis into a vagina is somehow naturally "oriented" to producing babies, even when sterility or contraception prevents this from happening.

But, then, Corvino suggests, it's hard to see how a married couple are "oriented" to reproduction when they intentionally do whatever is necessary to avoid it.  Moreover, we can even imagine a man who is a paraplegic--paralyzed from the waist down--who might marry a woman, and this would be a real marriage although sexual intercourse is impossible.

If heterosexual couples can be truly married, because they are committed to lifelong mutual caregiving, even though they will never have children, then, Corvino claims, homosexuals can be truly married when they are similarly committed to such mutual caregiving.

Even Gallagher sometimes contradicts herself by conceding that parental care of children is not the only natural function of marriage.  As Corvino points out, this is clear in a book that she coauthored with Linda Waite--The Case for Marriage: Why Married People are Happier, Healthier, and Better Off Financially (Doubleday, 2000).  They say that one of the "myths" that they want to refute is "Marriage is mostly about children; if you don't have kids, it does not matter whether you cohabit or marry or stay single" (4).  Against this myth, they point to evidence "documenting the powerful effect getting married and staying married has on the well-being of adults. . . . For some people, marriage can literally make the difference between life and death."  If marriage is good for the well-being of committed heterosexual couples, even without children, why isn't it equally good for the well-being of committed homosexual couples without children?  And if so, that means that conjugal bonding is one of the primary functions of marriage--whether heterosexual or homosexual--that stands independently of other functions such as parenting.

Nevertheless, some gay and lesbian couples do want to become parents, and they seek legal marriage as a way of supporting the stability of their household as the best environment for raising children.  It is true, as Gallagher indicates, that the children of a homosexual couple cannot have a biological connection to both parents, and with same-sex parents, the children cannot have both a father and a mother.  But it is possible for the children to have a biological connection to one of the parents, although most commonly same-sex couples will bring children into the family by adoption.  And as long as it is true, that adoptive homosexual parents are on average as good for children as adoptive heterosexual parents, then legalizing same-sex married parenting poses no special harm to children.

As already indicated, Corvino concedes that the ideal environment on average for raising children is a lifelong heterosexual marriage of mother and father jointing caring for the children.  Corvino says that he is grateful that he was raised in this environment, and his parents are still married and still tied to their children.

But in defense of same-sex marriage and parenting, Corvino points out that same-sex couples will never kidnap any children from any heterosexual couples who want to keep their children.  Homosexual parents will either produce children through artificial insemination, or they will adopt them.  And it is surely better for the children to be brought into existence than not.  And it is better for the children in foster care to be adopted.

Against this, Gallagher insists that children have a natural longing for the care of both a mother and a father, that because of the sexual differences between men and women, maternal caregiving is never the same as paternal caregiving, and so a mother can never be a father, and vice versa; and a child ideally should have the care of both the biological mother and the biological father.  Corvino agrees that this is the ideal.  But he suggests that we all recognize that what is ideal on average is not always attainable, and so we look for parenting arrangements that are good enough on average for children.

So, for instance, Gallagher recognizes that the word "mother" has both a natural meaning and a legal meaning.  The natural mother is "the person who bears the child with her body." But if the natural mother cannot or will not perform the maternal function, then "we give a motherless child a mother through the legal process" of adoption (103).  This is what Aquinas says when he explains the adoption of children as "art imitating nature," so that the adoptive parent becomes a "similitude" or "likeness" of the natural parent.

This same reasoning justifies the adoption of children by same-sex couples, because their adoptive parenting imitates natural parenting.  Even if natural parenting by both biological mothers and biological fathers is best on average for children, adoption is best for children when this ideal is not achievable.

So what we see here, I suggest, is that the natural law of marriage really does point to at least two natural functions of marriage--conjugal bonding and parental care--that can be achieved either by heterosexual marriage or homosexual marriage.  Depending upon their natural temperament, heterosexual individuals should marry into an opposite-sex marriage in order to satisfy their natural desires for mutual caregiving or parental care or both, although some by natural temperament will be better off not marrying.

Similarly, by natural temperament, many homosexual individuals will want to marry into a same-sex marriage in order to satisfy their natural desires for mutual caregiving or parental care or both, although many will not want to marry.

Corvino agrees that gay men have the same propensity to sexual promiscuity and less attachment to children as do heterosexual men, except that gay promiscuity is not constrained by women's greater desire for monogamous fidelity and caring for children.  At the same time, lesbian women are like heterosexual women in their greater propensity to monogamous bonding and child care.  Consequently, same-sex marriages with children will be more common among lesbians than among gay men.

We can predict, then, with the legalization of gay marriage, that most homosexuals will have no interest in monogamous marriage, that most same-sex marriages will have no children, and that most of the monogamous same-sex marriages with children will be based on lesbian couples.

If this prediction comes true, there is nothing here that threatens heterosexual marriage or harms children, and therefore no reason to oppose the legalization of same-sex marriage.  If marriage really is natural because it satisfies natural human desires for conjugal bonding and parental care that cannot be satisfied well in any other way, and if this is as true for same-sex marriage as it is for heterosexual marriage, then we can expect that the social norms supporting marriage--such as monogamous sexual exclusivity and parental devotion to children--will endure even while many individuals will violate those norms.

Friday, March 29, 2019

The Original Meaning of the 14th Amendment Supports Same-Sex Marriage

As pointed out by the dissenters in the case and by other critics, the great weakness in Justice Kennedy's opinion for the majority in Obergefell v. Hodges is that he does not make a good argument for how the text of the Constitution--particularly, the 14th Amendment--supports his conclusion that state bans on same-sex marriage are unconstitutional.  This is surprising, because Kennedy had access to an amicus curiae brief from the Cato Institute written by William Eskridge and Steven Calabresi (2015) that developed a cogent argument for how the original meaning of the 14th Amendment required striking down state bans on same-sex marriages, because these bans treat gays and lesbians as an inferior caste or class, and thus deny them the "equal protection of the laws" that is guaranteed by the 14th Amendment.

Two of the leading proponents of originalism--Antonin Scalia and Clarence Thomas--were dissenters in Obergefell; and so, as Eskridge (2015) has observed, Kennedy missed a perfect opportunity in this case to show the originalists that the original meaning of the Constitution really did require constitutional protection for same-sex marriage.  The five justices in the majority and two of the dissenting justices (Roberts and Alito) ignored original meaning altogether.

As Steven Calabresi and Hannah Begley (2016) explain it, a good originalist reading of the 14th Amendment needs to show the original meaning of the constitutional text as opposed to any supposed original intent of those who wrote or ratified that text.  In the case of same-sex marriage, the crucial constitutional text is the second sentence of the first section of the 14th Amendment:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Looking for the original intent of the congressmen who wrote and ratified this Amendment, an originalist like the late Chief Justice William Rehnquist would say that the framers of the 14th Amendment wanted to strike down the Black Codes in the southern states that were pushing the newly emancipated black slaves into an inferior caste status; and therefore the 14th Amendment is limited to prohibiting race-based discrimination, and it does not apply to other kinds of discrimination--such as sex discrimination or discrimination against homosexuals.  Moreover, those like Rehnquist might say, there is no evidence in the legislative history of the 14th Amendment that anyone intended that the amendment would be applied to striking down state bans on same-sex marriage.

There are problems with this kind of analysis.  First, it ignores the actual text of the Constitution.  The word "race" does not appear in the 14th Amendment, and therefore there is no textual basis for restricting its scope to racial discrimination.  Even the 13th Amendment, which abolishes slavery, does not mention race, because it abolishes slavery generally, not just racial slavery.  By contrast, the text of the 15th Amendment does specifically mention race: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

We should say, then, as Scalia did, that the original meaning of these legal texts is found in the words themselves, and not in any imagined intent of those who wrote or ratified these texts.  We are governed by the words of our laws, and so it is the public meaning of those words that counts.

The second problem with an originalism of original intent is that it forces originalists into awkward  positions.  For example, the theory of original intent cannot explain or justify the Supreme Court's decision in 1967 in Loving v. Virginia, which held that laws banning racial intermarriage were unconstitutional violations of the 14th Amendment, although most originalists would probably want to say that that was a good decision.  Anyone who looks at the legislative history of the 14th Amendment will see that critics of the Amendment warned that it would strike down the laws against racial intermarriage, which would lead to the degeneration of the races by creating "mongrels"; and the defenders of the Amendment had to deny this.  This forces an originalist to conclude that the decision in Loving v. Virginia was wrong, because it was contrary to the original intent of the 14th Amendment (Calabresi and Matthews 2012).

The only way to save originalism from these problems is to follow Scalia in looking to the original public meaning of the words of a legal text rather than the subjective interpretations of the text by legislators.  Perhaps the best example of a commentary on the Constitution that derives the original meaning from a careful reading of the text itself is George Anastaplo's The Constitution of 1787: A Commentary (1989).  In his concern for finding the public meaning of the words of the Constitution, Anastaplo was influenced by his teacher at the University of Chicago Law School--William Winslow Crosskey.

The opinions that legislators have about the laws that they have written and ratified are often contradictory and motivated by a desire to impose their personal preferences on the laws.  Members of Congress often vote for a bill and then deny that it means what it says, because they want the support of both those who support and those who oppose the bill.  If we ask what the intent of the Congress was in writing and adopting a law, we are likely to get the answer that different members of Congress intended different things.  If we ask about the original intent of the Framers of the Constitution, we will get the same answer.

In contrast to original intent, the original public meaning of the words in a text can be known objectively by looking at dictionaries and grammar books that indicate the generally accepted meanings of the words at the time the laws were written.  One can also look at newspapers and other public records at the time the laws were being ratified to see the public meaning of those words.  And one can look at the legal and political history of how those words were used.

So, for example, one can find evidence for the original public meaning of the words of the 14th Amendment that support the conclusion that state laws banning interracial marriage were violations of the Privileges and Immunities Clause, as Calabresi and Matthews (2012) argue.  "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."  This phrase "privileges or immunities" comes from Article 4 of the Articles of Confederation and Article 4, section 2, of the Constitution, where the "free inhabitants" (Articles of Confederation) or the "citizens" (Constitution) in each state are entitled to the "privileges and immunities" of those in the several states.  This has been understood to mean that as citizens of one state travel to or reside in another state, they have all the civil rights--but not the political rights--of the citizens of that state.  So, for instance, if the marriage laws of a state allow its citizens to marry a cousin, then a citizen from another state should have the same right to marry a cousin.  If "privileges and immunities" include the right to marry, then the 14th Amendment means that no state can abridge the right to marry for black citizens, including the right of a black citizen to marry a white citizen.  That's why some of the opponents of the 14th Amendment and the Civil Rights Act of 1866 warned that these laws would strike down the laws against interracial marriage.

Some interpreters of the Privileges and Immunities Clause of the 14th Amendment have argued that it should be read as general language for the rights enumerated in the Civil Rights Act of 1866:
". . . citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens . . ."
If a white citizen can contract to marry another white citizen, then it follows that "citizens of every race and color . . . shall have the same right" to contract to marry a white citizen.

In fact, during Reconstruction, when the Republicans controlled the Southern states, the supreme courts of both Alabama and Texas in 1872 unanimously struck down laws banning interracial marriage as contrary to the Civil Rights Act of 1866 and the 14th Amendment.  These decisions were overturned in 1877, once Reconstruction was over, and the Democrats took control of these states.  In 1871, the Indiana Supreme Court (in State v. Gibson) upheld laws against interracial marriage.  And in 1883, the U.S. Supreme Court (in Pace v. Alabama) unanimously upheld Alabama's anti-miscegenation law.  What this dispute shows is that it was possible, soon after the adoption of the 14th Amendment, for some judges to see state bans on interracial marriage as contrary to the original meaning of that amendment.

Similarly, one can see the original meaning of the 14th Amendment--particularly, the Equal Protection Clause--as striking down state bans on same-sex marriage, even though those who wrote and ratified the 14th Amendment did not anticipate that this would happen.  The original meaning of the Constitution must often be applied to novel circumstances that were not foreseen by the people who originally wrote and ratified the language of the Constitution.  In this case, we must apply the original meaning of "the equal protection of the laws" to a demand for same-sex marriage that arose at the end of the 20th century in the United States.

In 2014, the United States Court of Appeals for the Sixth Circuit reversed Judge Bernard Friedman's ruling in DeBoer v. Snyder overturning Michigan's ban on same-sex marriage.  The Court held that the Equal Protection Clause of the 14th Amendment does not apply to state marriage laws, because there is no evidence that "the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage."  But as Eskridge and Calabresi (2015) have pointed out, this Court's concentration on original understanding--how the original supporters of the 14th Amendment understood its immediate effect--ignores how the original meaning of the words "equal protection of the laws" applies to state bans on same-sex marriage.

The words "equal protection of the laws" evoke a long history of legal and political thought about the primacy of equality under the law, going back at least as far as John Locke's account of human equality in the state of nature (Calabresi and Begley 2016).  Locke's affirmation that all men are by nature equally free in their rights to life, liberty, property, and the pursuit of happiness was echoed in the Virginia Declaration of Rights and the Declaration of Independence in 1776, and in most of the state constitutions after 1776.  The Massachusetts Constitution of 1780, declared that "all men are born free and equal, and have certain natural, essential, and unalienable rights."  It also declared: "Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men."  Thus, a respect for equality as equal treatment under the law required the prohibition of any legislation unjustly favoring any class of people over others.

In 1868--the year that the 14th Amendment was ratified--24 of the 37 state constitutions existing at that time had provisions guaranteeing inalienable or natural rights that belonged to all persons as naturally born equally free (Calabresi and Agudo 2008).  The right of people to be free and equal at birth bars legislation that creates inferior castes or classes.

In the context of this history, one can interpret the original meaning of "equal protection of the laws" in the 14th Amendment as forbidding any state laws that discriminate against classes of citizens.  Senator Jacob Howard in 1866 explained that the words "race" and "color" were dropped from the 14th Amendment because:
"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.  This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."
We can now see that state laws granting a right to marry to heterosexuals but denying that right to homosexuals commit "the injustice of subjecting one caste of persons to a code not applicable to another," and therefore they violate the 14th Amendment's prohibition of state laws that deny "to any person within its jurisdiction the equal protection of the laws."

Here is how John Corvino (2012) expressed this point:
"Once the state provides marriage as an option for different-sex partners, even if they cannot or choose not to have children; even if they are elderly; even if they are divorced; even if they are incapable of coitus, and thus what the new natural law theorists consider 'real marriage'--once the state provides marriage in all these diverse cases and more, but then denies it to same-sex couples, it is treating citizens unequally" (89-90).


Anastaplo, George. 1989. The Constitution of 1789: A Commentary. Baltimore, MD: Johns Hopkins University Press.

Calabresi, Steven, and Sarah Agudo. 2008. "Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?" Texas Law Review 87: 7-120.

Calabresi, Steven, and Hannah Begley. 2016. "Originalism and Same-Sex Marriage." University of Miami Law Review 70: 648-707.

Calabresi, Steven, and Andrea Matthews. 2012. "Originalism and Loving v. Virginia." Brigham Young University Law Review 2012: 1394-1454.

Corvino, John. 2012. "The Case for Same-Sex Marriage," in John Corvino and Maggie Gallagher, Debating Same-Sex Marriage. Oxford: Oxford University Press.

Eskridge, William. 2015. "The Marriage Equality Cases and Constitutional Theory." Cato Supreme Court Review 14: 111-138.

Eskridge, William, and Steven Calabresi. 2015. Brief of Amicus Curiae Cato Institute, William Eskridge and Steven Calabresi in Support of Petitioners, Obergefell v. Hodges 135 S. Ct. 2584 (2014) (No. 14-556).

Thursday, March 28, 2019

The Burden of Proof in Kennedy's Same-Sex Marriage Opinion

This is a video of the marriage of April DeBoer and Jayne Rowse in Michigan on August 22, 2015.  This marriage was made possible by the decision of the U. S. Supreme Court two months earlier on June 26 in Obergefell v. Hodges, in which the majority of the Justices decided that the Michigan state laws banning same-sex marriage were unconstitutional in violating the 14th Amendment to the Constitution.

You can see in the video that Rowse's clothing at the wedding is masculine in style, while DeBoer's is feminine, so that their lesbian wedding simulates the wedding of husband and wife.

When DeBoer and Rowse first met in 1999, DeBoer had just gone through a divorce, and she had not yet come out to her family and friends.  After they became a couple, they celebrated their union with a commitment ceremony in 2008 attended by family and friends.  They talked about becoming parents and about the possibility that someday they could be legally married.  They first tried to conceive naturally through donated sperm.  DeBoer became pregnant with triplets, but she lost all three in a miscarriage.  They then decided to try adoption.  They adopted four children, and since their marriage, they had adopted one more.  Then, after a nearly fatal automobile accident, they decided they needed to draw up wills and assign custody of their children.  But when they met with a lawyer, they learned that Michigan law allowed lesbians to adopt children, but it prohibited lesbian couples from adopting children jointly.  Only heterosexual couples could legally adopt children jointly.  Of their four children, Nolan, 6, and Jacob, 5, legally belonged to Rowse, while Rylee, 2, and Ryanne, 4, belonged to DeBoer.

In 2012, DeBoer and Rowse filed a lawsuit in a federal district court challenging Michigan's ban on joint adoption by same-sex couples.  District Court Judge Bernard Friedman advised them that they should amend their suit to challenge Michigan's ban on same-sex marriage as unconstitutional in violating the 14th Amendment.  They did that.  In this case of DeBoer v. Snyder, a trial was held in 2014.  Many of the leading proponents and opponents of same-sex marriage testified as witnesses.  Judge Friedman's ruling in the case overturned the state ban on same-sex marriage as unconstitutional.

Remarkably, Judge Friedman would later officiate at their wedding one year later.  Judge Friedman was first appointed a Federal District Judge in 1988 by President Ronald Reagan.

Meanwhile, in Kentucky, Ohio, and Tennessee, there were other suits challenging the constitutionality of state bans on same-sex marriage.  In all of these cases, the District Court ruled in favor of petitioners. But then, on appeal, the Sixth Circuit U.S. Court of Appeals consolidated all of these cases and reversed the rulings and thus upheld the state bans on same-sex marriage.  This decision was appealed to the U.S. Supreme Court.  The Court granted review that was limited to two questions.  The first question presented by the cases from Michigan and Kentucky was whether the 14th Amendment requires states to license same-sex marriages.  The second question presented by the cases from Ohio, Tennessee, and Kentucky was whether a state must recognize a same-sex marriage licensed and performed in another state. Finally, in 2015, these four cases were jointly decided by the Court in Obergefell v. Hodges, striking down state laws banning same-sex marriage as an unconstitutional violation of the 14th Amendment.

Although I have been inclined to agree with the decision in this case, I see two reasons why one might reasonably doubt the persuasiveness of Justice Anthony Kennedy's opinion for the majority in this case.  First, as I have indicated in some previous posts, the question of whether state governments have any rational justification for banning same-sex marriages depends on the question of whether same-sex marriages can secure the same two natural ends secured by heterosexual marriage--conjugal bonding and parental care.  That's why I have identified this as a debate over the natural law of marriage.  The problem is that this debate turns on an empirical question for which there is no conclusive answer because the pertinent evidence is insufficient.

The opponents of same-sex marriage have to prove that when heterosexual parents enter into a legal marriage, this increases the probability of good outcomes for their children; but when homosexual parents enter into a legal marriage, this decreases the probability of good outcomes for their children.  If that were true, that would be a rational justification for a state granting marriage rights to heterosexual parents, but denying marriage rights to homosexual parents, because this would be in the best interests of children.  So the opponents of same-sex marriage must prove that marriage is good for the children of heterosexual parents, but bad for the children of homosexual parents.  When DeBoer and Rowse were married in Michigan as a result of the Obergefell decision, this increased the risk of harm to their children.  It would have been better for these children to be raised by unmarried lesbian parents.

When Mark Regnerus testified as an opponent of same-sex marriage in DeBoer v. Snyder, he shifted the burden of proof to the other side.  "We aren't anywhere near saying there's conclusive evidence" that the outcomes for children of same-sex parents are no different when compared with the children of heterosexual parents.  "Until we get more evidence, we should be skeptical. . . . It's prudent for the state to retain its definition of marriage to one man, one woman."  That's why Regnerus filed an amicus curiae brief in the Obergefell case arguing that the Court should have upheld the constitutionality of state bans on same-sex marriage: as long as the evidence is inconclusive, it is prudent to allow states to refuse to run the risk of legalizing same-sex marriage, which might turn out to be harmful for children.

But notice the implication of this: beginning in the summer of 2015, same-sex parents like DeBoer and Rowse across all of the United States have had the constitutional right to marry; and so as hundreds of thousands of children are raised in same-sex marital households, we will have the evidence--once the children reach young adulthood over the next 20-25 years--to decide whether the outcomes are much worse on average than for heterosexual parenting.  We will then have to decide whether same-sex marriage is more threatening to heterosexual marriage and more harmful to children than the legal regime prior to the Obergefell decision, which allowed easy, no fault divorce, serial monogamy, heterosexual promiscuity, homosexual promiscuity, step-parenting, adoptive parenting, single parenting, unmarried heterosexual parenting, and unmarried homosexual parenting (by a gay father or a lesbian mother).

The first problem with Kennedy's opinion is that he assumed that the evidence conclusively showed that there is "no difference" between heterosexual marriage and same-sex marriage, particularly in the likely outcomes for children.  In fact, I agree with Regnerus that the evidence is inconclusive.  If one sees that, then one must decide which side of the debate bears the burden of proof.  It would have been more honest for Kennedy to have said that he was putting the greater burden of proof on the opponents of same-sex marriage.

The second problem with Kennedy's opinion is that he did not show how the unconstitutionality of banning same-sex marriage conformed to the original meaning of the 14th Amendment.  I will take that up in my next post.