Thursday, July 02, 2015

The Empirical Falsifiability of Kennedy's Natural Law Reasoning for Gay Marriage

Natural law reasoning is an empirical science insofar as it makes falsifiable predictions about the failure of laws that deny human nature.  So, for example, if one agrees with Robert George and others that the monogamous marriage of a man and a woman is the only kind of marriage that can secure the two natural ends of marriage--conjugal bonding and parental care of children--and that same-sex marriage is not real marriage because it cannot secure these two natural ends, then one can predict that legalizing gay marriage will fail because it cannot satisfy the natural human desires for marital bonding and parental care.  Justice Kennedy agrees that marital arrangements are to be judged by whether they can achieve these two natural ends, but he argues that same-sex marriages can be as successful as opposite-sex marriages in securing these two ends.

Now that Obergefell v. Hodges has established gay marriage as a national constitutional right, we can begin to accumulate the evidence for deciding between these two falsifiable predictions--George's prediction that gay marriage will fail and Kennedy's prediction that it will succeed.  But in the responses to the Obergefell decision that I have seen, I have not seen many people making this point.

Consider the symposium on Kennedy's opinion at the First Things website, which shows the wide range of responses from conservative Christians and Jews.  Many of the writers here insist that they are defending truth against the lie of the LBGT agenda.  The lie, according to Patrick Deneen is "that the conjugal view of marriage has as little basis in reason or nature as denial of basic rights to people based upon the color of their skin.  The analogy's success has relied upon the loud and insistent demand that we not notice, nor regard as relevant or germane, the fact that men and women are different, and most importantly, that their sexual union is oriented toward reproduction."

Here Dineen rightly points to the central constitutional argument in Kennedy's decision.  In Loving v. Virginia (1967), state laws prohibiting biracial marriage were struck down as violating the 14th Amendment's protection of liberty and equality.  It was declared that marriage was "one of the vital personal rights essential to the orderly pursuit of happiness by free men," and that this included the right to marry someone of a different race.  When some homosexuals argued that excluding same-sex couples from marriage was unconstitutional for the same reason that excluding biracial couples from marriage was unconstitutional, the Court rejected this reasoning in Baker v. Nelson (1972).  Kennedy's decision overturns Baker v. Nelson in declaring that same-sex couples have the same right to marry as biracial couples.

The debate over biracial marriage was part of the debate over slavery prior to the Civil War.  Abraham Lincoln's critics argued that his appeal to equality of rights in condemning slavery as morally wrong would dictate an equal right to biracial marriage.  Lincoln responded, particularly in the Lincoln-Douglas debates of 1858, by insisting that he had never argued for the equal right of white men to marry black women.  This is often cited as showing Lincoln's racism, but the careful way in which he spoke suggests that he could not endorse biracial marriage in 1858, because of the racial bigotry of his times, although future changes in cultural attitudes might eventually make it possible to have something like the Loving decision.  This is the sort of moral and constitutional progress over time that Kennedy relies on.

But while conservative Christians today accept the legalization of biracial marriages as moral and constitutional progress, they reject the reasoning by analogy that would extend this to gay marriages, because legalizing biracial marriages in Loving still adhered to the traditional definition of marriage as between a man and a woman.

Now, at least, we can clarify if not resolve this debate by looking at the evidence.  Now we can look at our experience with one-race heterosexual marriages, two-race heterosexual marriages, and same-sex marriages to see how well they achieve the natural ends of marriage--conjugal bonding and parental care.

My prediction is that same-sex marriages can at least approximate opposite-sex marriages in securing these natural ends.  In the First Things symposium, Wesley Hill points to this idea.  He refers to a book by the gay journalist Jonathan Rauch--Denial: My Twenty-Five Years Without a Soul.  Rauch says that his life as a solitary homosexual was empty until he decided that he had a right to marry.  "They and he have found, at last, a name for his soul.  It is not monster or eunuch.  Nor indeed homosexual.  It is: husband."

Hill says that that last sentence of Rauch's book "left a lump in my throat."  "His portrayal of marriage as the main place to find dignity, belonging, and the end of loneliness sounds eerily similar to the view of marriage promoted in otherwise orthodox, traditional Christian churches.  In countless sermons, songs, Bible studies, and informal pew-side conversations, I heard that message like the peal of a gong: singleness equals alienation, marriage means home."

So is gay marriage "eerily similar" to heterosexual marriage in the natural needs that it satisfies? 

If the writers for this First Things symposium are right, the constitutional right to same-sex marriage will not end Rauch's loneliness and lead him home, because it's impossible for same-sex marriage to fulfill the natural desire for conjugal bonding.  Nor will same-sex marriage fulfill the natural desire for parental care, because it's impossible for a same-sex couple to provide properly for the well-being of children.

And yet, of the 23 writers in this symposium, Mark Regnerus is the only one to explicitly state a falsifiable prediction of gay marriage's failure: "marriage is a conservative institution and ultimately indestructible.  Hence an attempted alteration of the sort we are witnessing won't work."  He predicts that while the rate of gay marriage will rise over the next few years, the rate will decline dramatically over the next 15 years as gays discover that gay marriage doesn't work.

Regnerus is an interesting case, because he's a sociologist at the University of Texas who has published a study claiming to show that young adults reared by gay parents are not as well off as those reared by heterosexual parents. He found those raised by gay parents were more likely to have problems — welfare dependence, less education, marijuana use — than young adults from stable families led by heterosexuals. But he later acknowledged that his study didn't include children raised by same-sex couples in a stable relationship, and that provoked criticisms from people who claimed that this was a flawed and biased study.  He was one of the people offering expert testimony in the Michigan case that was appealed to the Supreme Court and became part of the Obergefell decision.  In his testimony, Regnerus said that there is not enough rigorous research to justify any firm conclusions about the effects of gay parenting on children.  In any case, this points to the possibility that empirical research could settle some of the debate over gay marriage.

Here is his original article.  Here is his response to his critics.  And here is a piece in Slate on the debate over his research.

There is another falsifiable prediction here.  Robert George and others predict that when the governmental licensing of marriage is not restricted to the "real marriage" of a man and a woman open to reproduction and caring for children, this will destroy the traditional institution of marriage.  Oddly, this contradicts George's argument that marriage is created not by government but by nature.


Anonymous said...

"one can predict that legalizing gay marriage will fail because it cannot satisfy the natural human desires for marital bonding and parental care"
This is question begging. It assumes that the function of marriage is to satisy the desires of the participants. On the contrary, institutions, like police, schools, hospitals, and armies, have functions that have nothing to do with the desires of the participants. Likewise, the function of marriage is to prevent the social problems that result from the production of children wheether or not this is the intention of the participants.

"Justice Kennedy agrees that marital arrangements are to be judged by whether they can achieve these two natural ends,"
Where does he do this? Instead he writes that "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Whatever the hell that means).

My prediction is that we will see more children born out of wedlock, more externalizing the costs of child raising onto the state in the form of child-care benefits, more social problems from fatherless children.

Larry Arnhart said...

I am referring to pages 13-16 of Kennedy's opinion.

CJColucci said...

Is there somewhere I can lay down a bet that Regnerus, George, et al. will never change their minds no matter how things turn out?

Larry Arnhart said...

C J Colucci,

As the author of the book on Kennedy's jurisprudence, I am wondering what you think of my suggestion that there's an implicit natural law reasoning in Kennedy's opinion.

CJColucci said...

You have me confused with someone else with the same last name (maybe I'll read his book), but for what it's worth I agree with you.

Larry Arnhart said...

I'm very sorry. I had you confused with Frank Colucci, the author of a book on Anthony Kennedy's jurisprudence.

An observer said...

The comment by Anonymous above makes a fundamental point -- Mr Arnhart's position presupposes that what is "natural" for human beings is defined by the satisfaction of certain "desires." Such an understanding is consistent with the modern view of nature as not embodying a standard of excellence, virtue, or right conduct for human beings but rather as simply a non-normative recital of the "desires" that exist and may be "satisfied" in human beings. There is of course the secondary empirical question whether same sex relationships as endorsed by the government will over the long run fall short of what can "satisfy" human beings in that sense. And while the answer to that question may be open, one hardly requires the statistical methods of contemporary social science to recognize the broad range of conduct to which human beings can be exhorted -- or compelled -- to accept as "satisfy[ing] natural desires." But in any event that inquiry, though interesting, really does beg the fundamental question for anyone who thinks that nature may be more than simply a congeries of desires. And needless to say, it is fatuous to think that any of this has anything to do with what is required by this country's written federal constitution.

Larry Arnhart said...

On this blog, I have argued that the good is the desirable, and that the fullest satisfaction of our natural desires over a whole life constitutes a universal standard for judging social practice as either fulfilling or frustrating human nature, although prudence is required in judging what is best for particular people in particular social circumstances.

Whenever a moral philosopher tells us that we ought to do something, we can always ask, Why? And ultimately the only final answer to that question is, Because it's desirable for you as something that will fulfill you or make you happy. And if I am right about my list of twenty natural desires, then this constitutes a universal standard for what is generally good for human beings, although the specification of what is good for particular individuals in particular circumstances will vary.

So, for example, if it's a normative principle that parents ought to care for the well-being of their children, the only good answer for why this is true is that parental care of children is a natural desire, and that the abuse, neglect, or abandonment of children has undesirable consequences.

Although the Constitution says nothing explicit about marriage, family life, or children, it does, of course, mention the right to liberty, which can be interpreted to include the right to marry. We must then wonder whether this right to marry includes the right to same-sex marriage.

We should also remember that the 9th Amendment declares that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This points to natural rights.

Anonymous said...

" the good is the desirable"
Hitler desired the extermination of the Jews. Therefore, the extermination of the Jews is desirable. The good is the desirable. Therefore, the extermination of the Jews is good.
But wait, Hitler's desire wasn't on my list of NATURAL desires.
Is same sex attraction a natural desire? Didn't sexual attraction evolve to bring male and female together for reproduction?

Larry Arnhart said...

You are mistaken in your assumption that whatever anyone happens to desire at any moment is truly desirable. Some homosexuals desire same-sex marriage. The debate over gay marriage is over whether this is truly desirable or not.

Anonymous said...

So the good is not the desirable, it is the TRULY desirable. Got it.

Larry Arnhart said...

Have you ever noticed that sometimes people are mistaken about what is desirable for them?

Anonymous said...

You keep playing on ambiguities in the meaning of "desirable." Sometimes it means "capable of being desired." And sometimes it means "what ought to be desired." If you take the former, you get examples like the Hitler one. If you take the latter you still have to say what ought to be desired, and you can't just appeal to desirability to do it. You say that what ought to be desired are your natural desires. And, I assume, "natural desires" are those that are built into human nature by natural selection. So natural desires are desires that have been selected by natural selection. But same sex attraction is not built by natural selection (see Greg Cochran's "gay germ" theory discussed at )
So I guess same sex attraction ought not be acted upon.