Intelligent Design Theory Is a Sophistical Argument from Ignorance and Equivocation

In Chapter 7 of Darwinian Conservatism and in various posts on this blog, I have claimed that the argument for intelligent design theory (as developed by people like Michael Behe, William Dembski, and Stephen Meyer) is a sophistical argument from ignorance and equivocation.

It's a argument from ignorance, because the proponents of intelligent design argue that if Darwinian scientists cannot explain in precise detail the step-by-step assembly of some irreducibly complex biological mechanism by evolutionary natural selection, then this proves that this biological mechanism was created by a divine intelligent designer. 

So, for example, Behe has argued that the bacterial flagellum (the rotating tail of bacteria) is an irreducibly complex biological mechanism, and since no biologist has provided convincing evidence for the step-by-step assembly of bacterial flagella by natural selection in evolutionary history, we must infer that the bacterial flagellum was created by the intelligent designer. 

Similarly, Dembski assumes that there are only three kinds of explanatory causes--natural necessity, chance, and design.  If we can eliminate natural necessity and chance as likely causes for some event, then we are left with design as the only explanation.  If we cannot explain the precise step-by-step path by which the bacterial flagellum arose through purely natural causes or by chance, then we must assume it was designed by some sufficient powerful intelligent agent.  Thus, Dembski defines design as the negation of natural regularity and chance, and consequently design has no positive content.

For intelligent design to have some positive content, Behe and Dembski would have to explain exactly where, when, and how a disembodied and sufficiently powerful intelligence designed flagella and attached them to bacteria.  Behe and Dembski don't do this, because it better serves their rhetorical strategy of negative reasoning that puts their Darwinian opponents on the defensive.  The trick is to demand a standard of proof for Darwinian science that the intelligent design proponents have not themselves met by showing exactly how a disembodied intelligence works in the world.

The argument for intelligent design is also an argument from equivocation in the use of the term "intelligent design."  Both Dembski and Behe speak of "intelligent design" without clearly distinguishing human intelligent design from divine intelligent design.  We have all observed how the human mind can cause effects that are humanly designed, and from such observable effects, we can infer the existence of human intelligent designers.  But insofar as we have never directly observed a disembodied, omniscient, and omnipotent intelligent designer causing effects that are divinely designed, we cannot infer a divine intelligent designer from our common human experience.

Behe is right that from an apparently well-designed mousetrap, we can plausibly infer the existence of a human intelligent designer as its cause, because we have common experience of how mousetraps and other human artifacts are designed by human minds.  In the same way, William Paley was right that from a well-designed watch, we can plausibly infer the existence of an intelligent human watchmaker.  But from an apparently well-designed organic mechanism (like the bacterial flagellum), we cannot plausibly infer the existence of a divine intelligent designer as its cause, because we have no common experience of how a divine mind designs things for divine purposes.

Dembski has written: "The point of the intelligent design program is to extend design from the realm of human artifacts to the natural sciences."  This sophistical rhetorical strategy of equivocation in the use of the term "intelligent design" hides the fact that while detecting the design of human artifacts is a matter of common observation and inference, detecting the design of divine artifacts is not.

At Dembski's website ("Uncommon Descent"), Barry Arrington wrote a post a few years ago responding to these criticisms.  Here's the post:

ID opponents sometimes attempt to dismiss ID theory as an “argument from ignorance.”  Their assertion goes something like this:

1.  ID consists of nothing more than the claim that undirected material forces are insufficient to account for either the irreducible complexity (IC) or the functionally specific complex information (FSCI) found in living things. 

2.  This purely negative assertion is an invalid argument from ignorance.  As a matter of logic, they say, it is false to state that our present ignorance concerning how undirected material forces can account for either the IC or the FSCI found in living things (i.e., our “absence of evidence”), means no such evidence exists.  In other words, our present ignorance of a material cause of IC and FSCI is not evidence that no such cause exists.

This rejoinder to ID fails for at least two reasons.  First, ID is not, as its opponents suggest, a purely negative argument that material forces are insufficient to account for IC and FSCI.  At its root ID is an abductive conclusion (i.e., inference to best explanation) concerning the data.  This conclusion may be stated in summary as follows: 

1.  Living things display IC and FSCI.

2.  Material forces have never been shown to produce IC and FSCI.

3.  Intelligent agents routinely produce IC and FSCI.

4.  Therefore, based on the evidence that we have in front of us, the best explanation for the presence of IC and FSCI in living things is that they are the result of acts of an intelligent agent.

The second reason the “argument from ignorance” objection fails is that the naysayers’ assertion that ID depends on an “absence of evidence” is simply false.  In fact, ID rests on evidence of absence.  In his Introduction to Logic Irving Marmer Copi writes of evidence of absence as follows:

In some circumstances it can be safely assumed that if a certain event had occurred, evidence of it could be discovered by qualified investigators. In such circumstances it is perfectly reasonable to take the absence of proof of its occurrence as positive proof of its non-occurrence.

How does this apply to the Neo-Darwinian claim that undirected material forces can produce IC and FSCI?  Charles Darwin published Origin of Species in 1859.  In the 152 years since that time literally tens of thousands of highly qualified investigators have worked feverishly attempting to demonstrate that undirected material forces can produce IC and FSCI.  They have failed utterly. 

Has there been a reasonable investigation by qualified investigators?  By any fair measure there has been.  Has that 152 year-long investigation shown how undirected material forces can account for IC or FSCI?  It has not.

Therefore, simple logic dictates that “it is perfectly reasonable to take the absence of proof” that undirected material forces can account for IC and FSCI as “positive proof of its non-occurrence.”

As far as I can see, there are two and only two responses the Darwinists can make to this argument:

1.  The investigation has not been reasonable or reasonably lengthy.

2.  Give us more time; the answer is just around the corner.

Response 1 is obvious rubbish.  If thousands of researchers working for over 150 years is not a reasonable search, the term “reasonable search” loses all meaning.

Response 2 is just more of the same Darwinist promissory notes we get all the time.  How many such notes will go unpaid before we start demanding that the materialists start paying COD?

Notice how this illustrates the intelligent design argument from ignorance and equivocation.  Notice how Arrington fails to provide any explanation for exactly when, where, and how the intelligent designer creates "the irreducible complexity (IC) or the functionally specific complex information (FSCI) found in living things."  So intelligent design theory has no positive explanatory content whatsoever.

Arrington claims that ID is not an argument from ignorance, because it is actually "an abductive conclusion (i.e., inference to best explanation) concerning the data."  But notice the third step in his abductive inference: "Intelligent agents routinely produce IC and FSCI."  He doesn't specify who these "intelligent agents" are.  If he's referring to human intelligent agents, then, of course, we can all agree that human intelligent agents routinely produce IC and FSCI.  But if he's referring to divine intelligent agents, then he will have to explain to us exactly how "divine intelligent agents routinely produce IC and FSCI." 

He doesn't want us to see that, because he wants to hide the movement by equivocation from human intelligent design to divine intelligent design.

Did Abraham Lincoln's Speech in Charleston Show that He Was a White Supremacist?

Lerone Bennett, Jr., is an African American historian and journalist. who has been a senior editor of Ebony magazine for many years.  He attended Morehouse College, where Martin Luther King, Jr., was one of his classmates.  He later wrote a biography of King.

Growing up in Mississippi in the 1930s, Bennett had admired Abraham Lincoln until he read Lincoln's speech in Charleston, Illinois, in his debate with Stephen Douglas, where Lincoln declared that he had never desired the perfect equality of the white and black races, and that he preferred that the white race should be in the "superior position."  Bennett told one interviewer: "I was a child in whitest Mississippi reading for my life, when I discovered for the first time that everything I'd been taught about Abraham Lincoln was a lie."  He explained: "I read it and I--and I was just--just absolutely shocked.  And from that point on, I started to--researching Lincoln and trying to find out everything I could about him. . . . I was trying to save my life because I find it difficult to understand how people could say this man was the great apostle of brother--brotherhood in the United States of America."

In 1968, Bennett wrote an essay for Ebony entitled "Was Abe Lincoln a White Supremacist?"  His answer to the question was yes.  Coming only a few years after Martin Luther King had delivered his "I Have a Dream" speech at the Lincoln Memorial in Washington, Bennett's essay provoked an intense debate over whether Lincoln's reputation as the "Great Emancipator" was a fraudulent myth.  In 1999, Bennett published a massive book (662 pages) laying out the evidence for his argument--Forced Into Glory: Abraham Lincoln's White Dream.  John Barr--in his book Loathing Lincoln--has shown how Bennett's argument fits into a long history of criticizing Lincoln.

Since I am rereading Lincoln now with my students, I have been reexamining that Charleston speech.  This question of whether Lincoln was a racist white supremacist has deep implications for American political history and for political philosophy.  The story of Lincoln as the Great Emancipator is crucial for the story of America as the nation that was redeemed from the sin of slavery by Lincoln and the Civil War, thus confirming America's original promise from the Founding period as the land of moral improvement directed to the goal of equal liberty for all. 

For political philosophy, the question is whether it is possible for political thinkers and statesmen like Lincoln to break free from the cultural prejudices of their time in apprehending the natural standards of justice that dictate natural human rights, or whether the cultural relativists and historicists are correct in claiming that there are no natural standards of right and that all moral and legal standards are merely the cultural biases of some particular historical moment.

Another question of political philosophy that arises here, and in the Lincoln-Douglas Debates generally, is how to resolve the tension between individual liberty and majoritarian democracy.  For Douglas, the tension is resolved by giving priority to majority rule, even when majority rule violates individual liberty.  For Lincoln, the tension is resolved by giving priority to individual liberty, even when that means denying the will of the majority, and yet as a politician in a majoritarian democracy, Lincoln cannot disregard the opinions of the majority.

Here's the opening of Lincoln's speech in Charleston on September 18, 1858.  For the purposes of citation, "CW" refers to Basler's Collected Works of Abraham Lincoln, and "LA" refers to the Library of America edition of Lincoln's Speeches and Writings.  Although the newspaper transcripts of the speech present this opening as one long paragraph, I have divided it into shorter paragraphs.

"While I was at the hotel today, an elderly gentleman called upon me to know whether I was really in favor of producing a perfect equality between the negroes and white people. [Great laughter.] While I had not proposed to myself on this occasion to say much on that subject, yet as the question was asked me, I thought I would occupy perhaps five minutes in saying something in regard to it." 

"I will say then that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races, [applause]--that I am not, nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people, and I will say in addition to this that there is a physical difference between the white and black races, which I believe will forever forbid the two races living together on terms of social and political equality." 

"And inasmuch as they cannot so live, while they do remain together, there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race.  I say upon this occasion I do not perceive that because the white man is to have the superior position, the negro should be denied everything.  I do not understand that because I do not want a negro woman for a slave, I must necessarily want her for a wife. [Cheers and laughter.]  My understanding is that I can just let her alone.  I am now in my fiftieth year, and I certainly never have had a black woman for either a slave or a wife.  So it seems to me quite possible for us to get along without making either slaves or wives of negroes." 

"I will add to this that I have never seen to my knowledge a man, woman, or child who was in favor of producing a perfect equality, social and political, between negroes and white men.  I recollect of but one distinguished instance that I ever heard of so frequently as to be entirely satisfied of its correctness--and that is the case of Judge Douglas' old friend Col. Richard M. Johnson. [Laughter.] [Johnson was a Kentucky Democrat who was widely known to have a black mistress.]"

'I will also add to the remarks I have made, (for I am not going to enter at large upon this subject,) that I have never had the least apprehension that I or my friends would marry negroes if there was no law to keep them from it, [laughter] but as Judge Douglas and his friends seem to be in great apprehension that they might, if there were no law to keep them from it, [roars of laughter] I give him the most solemn pledge that I will to the very last stand by the law of this State, which forbids the marrying of white people with negroes. [Continued laughter and applause.]"

"I will add one further word, which is this, that I do not understand there is any place where an alteration of the social and political relations of the negro and the white man can be made except in the State Legislature--not in the Congress of the United States--and as I do not really apprehend the approach of any such thing myself, and as Judge Douglas seems to be in constant horror that some such danger is rapidly approaching, I propose as the best means to prevent it that the Judge be kept at home and placed in the State Legislature to fight the measure. [Uproarious laughter and applause.]" (CW, 3:145-46; LA, 1:636-37)

There are at least three possible interpretations of what this reveals about Lincoln's thinking.  First, one could argue that this shows that Lincoln was a life-long white supremacist, who fully embraced the racist attitudes of his audience in Charleston.  Second, one could argue that while this shows that Lincoln shared some of the racist opinions of his audience in 1858, he later moved away from the racism of his time and evolved towards promoting racial equality.  Third, one could argue that Lincoln always believed in racial equality as a standard to be approached as quickly as circumstances permitted, but that racist prejudices would for a long time make this hard to achieve, and that in 1858, he had to speak in an ambiguous way so as to make his audience think he shared their racism, because any direct challenge to their racism would have deprived him of any political success.

Bennett takes the first view.  If I am reading him correctly, John Barr takes the second view.  I take the third view.

In his book, Barr seems to agree with the words of Eric Foner: "the aspiring Illinois politico of the 1850s who pandered to the racial prejudices of his audience had, by the end of the Civil War, arrived at a remarkable sensitivity to the plight of blacks in American society.  The growth of Lincoln's vision was the hallmark of his Presidency" (Barr, 237).  Barr observes that Lincoln's view of race was "quite advanced" compared with other people of his time, because he always defended, even in Charleston, the claim that blacks were entitled to the equality of rights affirmed in the Declaration of Independence.  And by 1865, Barr notes, Lincoln was showing "expanded notions of racial egalitarianism." In his last public speech, Lincoln recommended voting rights for the emancipated slaves.  He recommended the readmission to the Union of the new government of Louisiana, despite the fact that blacks in Louisiana did not yet have voting rights.  Lincoln observed: "I would myself prefer that it [the elective franchise] were now conferred on the very intelligent, and on those who serve our cause as soldiers."  Lincoln indicated that the new Louisiana Constitution provided for public education equally for black and white and empowered the Legislature to grant voting rights to all blacks (CW, 8:403-404; LA, 2:699-700).  Barr points out that when John Wilkes Booth heard this, he told someone that this meant "nigger citizenship," and then he assassinated Lincoln only three days after the speech (Barr, 130-31).  In the original manuscript of Barr's book that I read, he wrote that the Charleston speech "was not Lincoln's best moment," but that he showed improvement in his "evolving racial views as they stood in 1865."

I agree with Barr that there was some evolution here, but the evolution was not so much in Lincoln's views as in public opinion.  From the early days of his political career, Lincoln embraced the equality of natural rights for all human beings as affirmed in the Declaration of Independence, but he also indicated that the practical enforcement of those equal rights would depend upon a slow evolution in public opinion towards recognizing those rights for all human beings, black as well as white, female as well as male.  For example, when Lincoln was running for a second term as an Illinois state representative in 1836, he declared to the voters: "I go for admitting all whites to the right of suffrage, who pay taxes or bear arms, (by no means excluding females.)" (CW, 1:48; LA, 1:5).  Remarkably, as far as I know, Lincoln for the rest of his life never again mentioned extending voting rights to women.  Can't we assume that he realized that the women's suffrage movement was unlikely to win over public opinion during his lifetime, and so he would have to keep quiet about his belief that equality of rights included equal voting rights for women? 

Similarly, I suggest, Lincoln had to move slowly and carefully on the issue of voting rights for blacks.  In his speech on the Dred Scott decision, Lincoln noted, in contrast to Roger Taney's claim that blacks had not been citizens during the Founding period, that in fact blacks were voters in some of the states during the ratification of the Constitution; and Lincoln said nothing to suggest that he thought this was wrong (CW, 2:403; LA, 1:395).

Furthermore, Lincoln's careful use of language in his speech in Charleston allows the audience to believe that he is endorsing their racist attitudes, while in fact he is not.  Notice what he says.  Twice he says: "I am not, nor ever have been in favor of . . . ."  But he does not say: "nor ever will be"!  So he does not say that he will never in the future favor negroes being voters, jurors, or officers of government, or intermarrying with white people.

Lincoln says that there is "a physical difference between the white and black races" that he believes will forever forbid the two races living together in "perfect equality, social and political."  He does not say what that "physical difference" is, but the most obvious difference is skin color; and thus Lincoln could be suggesting that a mere difference in skin color between races can make "perfect equality" difficult if not impossible to achieve because of racial prejudices.

In his speech on the Kansas-Nebraska Act in 1854, Lincoln had said that once black slaves are emancipated, they will not be treated as socially and politically equal to whites, because "the great mass of white people" have a "feeling" against this.  "Whether this feeling accords with justice and sound judgment is not the sole question, if, indeed, it is any part of it.  A universal feeling, whether well or ill-founded, cannot be safely disregarded.  We cannot, then, make them equals" (CW, 2:256; LA, 1:316).  So the failure to achieve perfect equality between the races arises from feelings of racial prejudice that cannot be ignored, even though they might be totally unjust and irrational.

Speaking of the negro in the first debate at Ottawa, Lincoln said: "I agree with Judge Douglas he is not my equal in many respects--certainly not in color, perhaps not in moral or intellectual endowments.  But in the right to eat the bread, without the leave of anyone else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man" (CW, 3:16; LA, 1:512).  So the only certain "physical difference" is color.  The differences in "moral or intellectual endowments" are uncertain.  Even if there were moral and intellectual differences, this would not weaken the argument for human equality, which is based on the claims that all human beings have a right to themselves and to what they have earned, that no man is good enough to govern another man without that other man's consent, and that as none of us would wish to be a slave, so none of us should wish to be a master (LA, 1:303, 327-28, 484; 2:19, 663).

In his Charleston speech, Lincoln goes on to say that if "perfect equality" of the races is not achievable, and if the races do remain together, then "there must be the position of superior and inferior," and he as much as any other white man would want to have the "superior position" assigned to the white race.  But notice that he does not say that the white race deserves the "superior position" because it is the "superior race"! 

Stephen Douglas does say that the white race is the "superior race."  But Lincoln in other speeches rejects such talk: "let us discard all this quibbling about this man and the other man--this race and that race and the other race being inferior, and therefore they must be placed in an inferior position--discarding our standard" from the Declaration of Independence.  That standard of equal liberty in the Declaration is a standard of perfection that can never be perfectly achieved, Lincoln argued, but it can be approximated over time: "let it be as nearly reached as we can," or "as fast as circumstances permit"(CW, 2:501; LA, 1:458).  He sometimes suggested that it might take one hundred years or more to approximate that standard of equal liberty (LA, 1:514-15, 677).

Lincoln agrees with Douglas that in America's multiracial society, emancipated slaves can have the "civil rights" of free people, but they cannot have the "political rights" of citizens, because the free blacks will be assigned to an "inferior position" by the whites.  But while Douglas thinks this is a permanent position of inferiority for the blacks because they belong to a permanently inferior race, Lincoln thinks that through gradual social changes, blacks can move from inferiority to some approximation of equality (CW, 3:10-11; LA, 1:505-506).

An alternative to striving for equal liberty in a racially mixed society would be to separate the races so that each race could live in its own society.  For a long time, Lincoln proposed voluntary colonization of Africa, particularly Liberia, where American freed slaves could satisfy "the aspiration of men . . . to enjoy equality with the best when free" (LA, 2:353).  But Lincoln had always doubted the practicality of this scheme, and by the end of the Civil War, his plans for reconstruction assumed that the emancipated slaves must be assimilated into American society.

As indicated in his Charleston speech, any alteration in the social and political relations between the races to move towards equality would depend on state legislatures, because of the limited powers of the national government for intervening in the states.  But at the end of the Civil War, Lincoln supported the adoption of the Thirteenth Amendment, which abolished slavery in all of the states.  This was followed by the Fourteenth and Fifteenth Amendments, which prohibited the states from abridging the equal liberty of citizens of the United States.  These amendments could be seen as the fulfillment of the principles of the Declaration of Independence--that all human beings are naturally endowed with equal rights to life, liberty, and the pursuit of happiness, and that just governments must secure those rights.

In contrast to Stephen Douglas's claim that the principle of self-government requires that majoritarian democracy takes priority over individual liberty, the Civil War Amendments confirm Lincoln's claim that the principle of self-government requires that individual liberty takes priority over majoritarian democracy.  And for Lincoln, individual liberty means that "each individual is naturally entitled to do as he pleases with himself and the fruit of his labor, so far as it in no wise interferes with any other man's rights" (CW, 2:493; LA, 1:440).

Consequently, Lincoln could have foreseen that under the Fourteenth Amendment's prohibition of state laws abridging the natural liberty of citizens, the Supreme Court--in the case of Loving v. Virginia (1967)--could strike down as unconstitutional the state laws forbidding and punishing interracial marriage.  As Lincoln foresaw, it took a hundred years to do this!

This shows that the cultural relativists and historicists are correct in claiming that moral progress is constrained by the cultural prejudices of a society.  But they are wrong in denying that it is possible for prudent thinkers and statesmen like Lincoln to apprehend the principles of natural right as the standard of moral perfection that can be approximated over time, even if never perfectly attained.

In his "Lecture on Discoveries and Inventions," Lincoln presented the history of progress towards equal liberty as a big history of human evolution from foraging society to farming society to commercial society.  Ultimately, this is a history of the progressive improvement in the human mind.  Of the many discoveries and inventions in this history, the three most important are language, writing, and printing.  The invention of printing brought the "dark ages" to an end.  Lincoln explains:

"It is very probable--almost certain--that the great mass of men, at that time, were utterly unconscious, that their conditions, or their minds were capable of improvement.  They not only looked upon the educated few as superior beings; but they supposed themselves to be naturally incapable of rising to equality.  To emancipate the mind from this false and underestimate of itself, is the great task which printing came into the world to perform.  It is difficult for us, now and here, to conceive how strong this slavery of the mind was; and how long it did, of necessity, take, to break its shackles, and to get a habit of freedom of thought established.  It is, in this connection, a curious fact that a new country is most favorable--almost necessary--to the emancipation of thought, and the consequent advancement of civilization and the arts. . . . It is in this view that I have mentioned the discovery of America as an event greatly favoring and facilitating useful discoveries and inventions." (CW, 3:362-63; LA, 2:10) 

Thus, the emancipation of human beings and their rising to equality requires the emancipation of the human mind.

Some of my posts on Lincoln and slavery are here, here., here., here., and here.  Some of my posts on equality and the IQ debate are here and here.

Animal Homosexuality: Response from Aldo Poiani

In response to my previous post, Aldo Poiani (a biologist at Monash University, Victoria) has sent me the following email message, and he has allowed me to post it here:

I read your article and would like to point out the following: When it comes to using examples from biology to extrapolate to the realm of ethics, just about anything goes. You mention the important example of aggression, a rather adaptive trait in many contexts for both social and non-social animals. Ethically, we may put together some very sound arguments to limit the expression of aggression in society (hence the many laws doing so), and yet we regularly also put forward arguments (and laws) to justify aggression in other contexts (e.g. war, maintaining social order). Hence, this evolutionarily adaptive trait can be ethically acceptable or not depending on circumstances. This is the reason why I felt that a direct personal stance was required in order to clarify my ethical position regarding homosexuality. I gave arguments and evidence to suggest that homosexuality is not a pathology, rather it can be adaptive, and yet the extrapolation into ethics is ambiguous, something else is needed, and that something else requires a personal decision as individuals. This implies that acceptance of homosexuals in society rests on additional cultural and political work, it won't come effortlessly from the description of homosexual behaviour as biologically adaptive. In my view, such cultural and political work is rooted into our beliefs in democracy and the recognition and acceptance of cultural and biological diversity.

To quote from your article: "To argue, as Poiani does, that the science of animal homosexuality shows that homosexuality is a naturally adaptive trait and thus not a "pathology" or "disorder" is a scientific argument with normative connotations.  And yet, Poiani insists, science cannot claim to support normative conclusions without committing the naturalistic fallacy." As I mentioned above there are adaptive traits that can raise ethical questions leading us to one conclusion or the exact opposite. Infanticide, for instance, is a widespread behaviour among many vertebrates, it can demonstrably have adaptive value under specific environmental conditions, and yet infanticide can produce strong negative ethical reactions in modern Western societies. On the other hand, many argue in favour of abortion and also euthanasia. Navigating such ethically turbulent waters requires a long and serious work of cultural change.

Homosexuality is not a pathology, hence arguments against homosexuality based on such link to pathology should be simply dismissed. However, homosexuals are advised not to rest on this argument, but continue their hard work to open up the mind of other members of society to the acceptance of our human diversity. This is currently relevant (both in Australia and elsewhere) in the debate over marriage equality. Marriage equality strikes at the very core of our understanding of democracy, biology can only help by telling us that homosexuals are not "mentally sick individuals". This takes me to your last statement: "Is there any evidence that same-sex marriages harm children?"... The answer from psychological research is a resounding: No! There is no evidence that growing in a homosexual family leads children to develop more problems than those developed by children growing up in a heterosexual family. This is quite unsurprising, as in our evolutionary history children have experienced all sorts of social environments where a father or a mother may have been missing due to early death or other reasons, where heterosexual marriages have been unstable, etc.

Finally, I agree with your conclusion as it fits with life in a mature democracy: "Given what we know about the animal nature of homosexuality, if we want to pursue happiness, peace, and prosperity in societies with both heterosexual and homosexual individuals, then we ought to protect the liberty of homosexuals to live their lives as they wish as long as they do not harm others.  Consequently, the liberty of homosexuals would include the right to same-sex marriage as long as we know that this is not harmful to others." 

 

The Thomistic Natural Law of Animal Homosexuality

In explaining natural law as rooted in biological nature, Thomas Aquinas often quoted the words of the Roman jurist Ulpian at the beginning of Justinian's Institutes: "Natural right [ius naturale] is what nature has taught all animals, for this right is not only proper to the human species but to all animals, who are born in the sky, the earth, and sea.  From this comes the intercourse of male and female, which we call marriage, and the procreation and education of children."

From his mentor Albert the Great, who wrote a massive study of zoology, Thomas learned how comparative animal studies could support the natural law of marriage.  Among those animals whose offspring could survive and flourish without the care of both parents, Thomas observed, there was no need for the pair-bonding of a father and mother for the care of their offspring.  But among those birds and other animals whose offspring need the care of both parents, there tends to be a natural bond between the parents who jointly care for the offspring.  Human beings belong to this latter group of animals. 

From this, Thomas infers that while marriage is a distinctly human institution, marriage in rooted in the natural animal instincts for parental care of children and conjugal bonding of husband and wife.  He also infers from this comparative animal biology that homosexuality must be unnatural for two reasons.  First, nonhuman animals do not engage in homosexual conduct.  Second, homosexuality does not lead to procreation and parental care of children (Summa Theologica, I-II, q. 30, a. 3; q. 31, a. 7; q. 94, a. 3, ad 2, q. 94, a. 6; II-II, q. 154, aa. 11-12)..

We now know, however, that Thomas was mistaken about both of these points.  Scientists have observed homosexual behavior in 471 animal species--167 species of mammals, 132 species of birds, 32 species of reptiles and amphibians, 15 species of fishes, and 125 species of insects and other invertebrates (Bagemihl 1999, 673).  Scientists have also observed that same-sex pairs have successfully reared young in at least 20 species.  In some cases, one or both partners are the biological parent(s) of the young they raise together.  In other cases, the partners adopt and care for young without being the biological parents (Bagemihl 1999, 23-26).  Moreover, in some cases, the same-sex couples seem to be more successful in their parenting than opposite-sex parents.

We also now know that homosexuality is biologically natural in that it arises through the interaction of many biological factors in the early development of fetuses and children--genes and sex hormones shape the body and the brain in early life so that people are naturally predisposed to become heterosexual, bisexual, or homosexual.  Monozygotic (identical) twins are more concordant in their sexual orientation than dizygotic (fraternal) twins, which clearly shows a genetic contribution to homosexuality   That the concordance between monozygotic twins is about 50% suggests that while there is a genetic influence, there are also other biological factors involved.  And while there is no single "gay gene," there are probably many different genes interacting with one another in various ways that influence sexual orientation (Poiani 2010, 55-96).  Explaining the biology of animal homosexuality requires a complex multicausal model (Poiani 2010, 401-425).

If homosexuality is biologically natural, does that support the liberty of homosexuals as a natural right?  At the website for "LGBT Science," you can see how the LGBT community appeals to the biology of homosexuality to show that homosexuality is natural and thus should be protected as a matter of individual liberty.  Similarly, at the end of his book surveying the science of animal homosexuality, Aldo Poiani declares as his "personal ethical stance" his support for "the fundamental human right of homosexuals, bisexuals, transsexuals and intersex people to express their own self with respect to the laws of the land" (425). 

And yet Poiani admits that his ethical stance cannot be rooted in his scientific study of homosexuality, because he accepts the idea of the naturalistic fallacy or the is/ought problem.  "The findings of scientific research aim at being descriptive of nature and not prescriptive of how we should behave in an ethical sense" (424). 

Nevertheless, Poiani clearly implies that there are ethical implications to his argument that homosexuality is not a pathology.

"I regard the potential development of homosexuality in response to stresses experienced during early development as an adaptive response, not a pathology in need of a cure.  My appreciation of Freud's insight that early stresses may contribute to cause homosexuality stops at the point where psychoanalysis concludes that therefore homosexuality is a pathology in need of treatment.  Adaptive responses have evolved to maintain survival and direct (via bisexuality) or indirect (via helping relatives) reproductive success under challenging environmental (e.g. social) conditions.  If so, then homosexuality is adaptive and not a pathology" (422).

Poiani is pleased that the American Psychiatric Association voted in 1973 to remove the classification of homosexuality as a pathology of sexuality in its Diagnostic and Statistical Manual of Mental Disorders (DSM).  But he is disturbed that the fourth edition of the DSM includes "Gender Identity Disorder," which is identified as a mental disturbance from a "strong and persistent cross-gender identification."  Among children, the disturbance is manifest in "(1) repeatedly stated desire to be, or insistence that he or she is, the other sex; (2) in boys, preference for cross-dressing or simulating female attire; in girls, insistence on wearing only stereotypical masculine clothing; (3) strong and persistent preferences for cross-sex roles in make-believe play or persistent fantasies of being the other sex; (4) intense desire to participate in the stereotypical games and pastimes of the other sex; (5) strong preference for playmates of the other sex."

Poiani objects to the assumption here of "a bipolar concept of masculinity and femininity."  He explains:

"What I show in this book, and what other authors have shown in their published works, is that gender roles in humans and other social mammals with biparental care are not static and rigidly organized into clearly masculine traits associated with males and feminine traits associated with females.  As far as behavior is concerned, there are differences but also great regions of overlap between the sexes in both birds and mammals, including humans" (423).

Poiani suggests that the distress felt by those identified as showing "Gender Identity Disorder" comes not from any natural cause but from cultural norms of stereotypical male and female identities.  In fact, he argues, a feminine boy or a masculine girl is expressing an adaptive phenotype.

In the fifth edition of the DSM, published in 2013, the term "Gender Identity Disorder" has been replaced by "Gender Dysphoria," although the diagnostic criteria are mostly unchanged.  People with "Gender Dysphoria" feel distress from "a marked incongruence between the gender they have been assigned to (usually at birth, referred to as natal gender) and their experienced/expressed gender" (DSM, 453).  I assume that Poiani would object to this classification of feminine men or masculine women as showing a "mental disorder" rather than an adaptive phenotype.

To argue, as Poiani does, that the science of animal homosexuality shows that homosexuality is a naturally adaptive trait and thus not a "pathology" or "disorder" is a scientific argument with normative connotations.  And yet, Poiani insists, science cannot claim to support normative conclusions without committing the naturalistic fallacy.

Natural law reasoning in general is often criticized for committing the naturalistic fallacy in assuming that a description of what is natural for us can support a prescription of what is good for us.  But there is no such fallacy in natural law reasoning if we see it as reasoning through a hypothetical imperative. 

Borrowing the language of Randy Barnett (1998), who has borrowed from the language of H. L. A. Hart about the "minimal content of natural law," we could say that all natural law reasoning depends on hypothetical imperatives that have a "given/if/then" structure: Given what we know about the nature of human beings and the world in which they live, if we want to pursue happiness while living in society with each other, then we ought to adopt a social structure that conforms to human nature in promoting human happiness in society.  So, for example, given what we know about human vulnerability and human propensities to violent aggression, if we want to pursue happiness, peace, and prosperity in our society, then we ought to have laws against murder, rape, assault, and theft.  Consequently, the laws against murder, rape, assault, and theft are natural laws.

Natural law reasoning does not prohibit us from punishing any expression of a natural behavioral propensity.  For example, pure psychopaths are probably expressing their biologically natural propensities.  But given what we know about the harmful propensities of psychopaths, if we want to protect our society from harm, then we ought to punish psychopaths to protect ourselves from their harmful behavior.

Consider how this would apply to homosexuality.  Given what we know about the animal nature of homosexuality, if we want to pursue happiness, peace, and prosperity in societies with both heterosexual and homosexual individuals, then we ought to protect the liberty of homosexuals to live their lives as they wish, as long as they do not harm others.  Consequently, the liberty of homosexuals would include the right to same-sex marriage, as long as we know that this is not harmful to others.  That is the argument of Justice Kennedy's decision in Obergefell v. Hodges.

If one believes, however, as some of the opponents of same-sex marriage believe, that the governmental licensing of same-sex marriage will harm the children of same-sex parents, then natural law reasoning would condemn the legalization of same-sex marriage. 

The debate here becomes an empirical question that will be settled by our reasoning about our experience: Is there any evidence that same-sex marriages harm children?

REFERENCES

American Psychiatric Association. 2013. Diagnostic and Statistical Manual of Mental Disorders. Fifth edition. Washington, D.C.: American Psychiatric Publishing.

Bagemihl, Bruce. 1999. Biological Exuberance: Animal Homosexuality and Natural Diversity. New York: St. Martin's Press.

Barnett, Randy E. 1998. The Structure of Liberty: Justice and the Rule of Law. Oxford: Oxford University Press.

Poiani, Aldo. 2010. Animal Homosexuality: A Biosocial Perspective. Cambridge: Cambridge University Press.

Posts on related topics can be found here, here, here, here, here, here., here., here, and here.

The Natural Law of Marriage and the Obergefell Decision: Four Possibilities

For those of us who believe there is a natural law of marriage, there are four possible ways to respond to the decision in Obergefell v. Hodges declaring same-sex marriage a constitutional right.

The first possible response is the oppositional position.  We might argue that by nature only the marriage of one man and one woman can be a real marriage, because this is the only kind of marriage that fully satisfies the two natural ends of marriage--conjugal bonding and parental care of children.  Consequently, the decision in Obergefell is opposed to the natural law of marriage, because the legalization of same-sex marriage teaches us that same-sex marriage can fully satisfy the two natural ends of marriage, and this is a lie.  Those who take this position will have to try to overturn or evade the decision in Obergefell.  Most of those who profess to believe in the natural law of marriage--people like Ryan Anderson and Robert George--assume that this is the only possible position to take if one believes in natural law.

But there are other possibilities.  The second possible response to Obergefell is the compatibilist position.  One could argue that the traditional proponents of natural law have failed to see how same-sex marriage is compatible with the natural law of marriage, because same-sex couples can secure the two natural ends of marriage--conjugal love and parental care--without weakening heterosexual marriage.  As I have argued in previous posts, this turns on an empirical question: Will the legalization of same-sex marriage destroy opposite-sex marriage and harm the children of both heterosexual and homosexual parents?  If the answer is no, then the compatibilist position will be confirmed.

The third possible position is the covenant marriage position.  In three states--Lousiana, Arkansas, and Arizona--people seeking marriage licenses must choose between "covenant marriage" and "standard marriage."  Standard marriage is the sort of marriage that has been adopted in all states since the 1950s, which allows for no-fault divorce.  Covenant marriage does not allow for no-fault divorce.  Prior to the 1950s, those married couples seeking a divorce had to prove that one of the couples was guilty of adultery, abuse, or abandonment.  Prior to 1960, divorce was extremely rare.  Since 1960, divorce has become common because of the no-fault divorce laws. 

According to Ryan Anderson, this is what has destroyed the culture of real marriage.  "By providing easy exits from marriage and its responsibilities, no-fault divorce helped to change the perception of marriage from a permanent institution designed for the needs of children to a temporary one designed for the desires of adults" (Truth Overruled, 40).  "Same-sex marriage is a consequence, not a cause, of the collapse of our marriage culture.  We have heterosexuals, not gays and lesbians, to blame for decades of marital instability, with the consequent harm to women, to children, and especially to the poor" (161-62).  Remarkably, however, Ryan says nothing about covenant marriage as the way for the law to teach that only marriage without no-fault divorce is real marriage. 

Those seeking a covenant marriage are required to go through marriage counseling before their marriage.  They must be counseled that marriage is a permanent commitment between a man and a women and a commitment of the spouses to care for their children.  They must sign a statement affirming this.  A spouse seeking a divorce must first go through marriage counseling.  A divorce is granted only when the other spouse has committed adultery, or has abused the spouse or the children, or has committed a felony, or has engaged in substance abuse, or when the spouses have been living separately for at least one or two years.

I am not sure whether the Obergefell decision will be interpreted as challenging the constitutionality of covenant marriage laws.  I assume that in Louisiana, Arkansas, and Arizona, "standard marriage" will be opened up to same-sex couples, and "covenant marriage" will continue to be an option for heterosexual couples.  One can argue that this is not an unconstitutional discrimination against same-sex couples because it serves the rational purpose of promoting real marriage as securing biological connection, sexual complementarity, and stability; and those heterosexual couples who refuse to accept the principles of real marriage are not given a "covenant marriage" license.  This removes the contradiction in the position of those like Ryan Anderson, who argue that opposite-sex marriage laws rightly teach the ideal of real marriage, but then he allows opposite-sex couples to get a marriage license even when they are forming families without the biological connection, sexual complementarity, and stability of real marriages.  Under these conditions, excluding same-sex couples from a marriage license is an arbitrary discrimination with no rational basis, and thus unconstitutional violation of the Privileges or Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment.

The defenders of real marriage should promote the adoption of covenant marriage law in all of the states.  To avoid the religious connotations of "covenant," the law might distinguish between "real marriage" and "standard marriage."  This would allow the law to teach the ideal of real marriage, while allowing opposite-sex and same-sex couples equal access to "standard marriage."

The fourth possibility for those who believe in the natural law of marriage is the privatization position.  Throughout most of human history, marriage has been a private contract that did not require a license from a government.  By returning to that system, state governments would withdraw from the controversy over marriage and would not favor one form of marriage over another.  Individuals and groups could promote real marriage by enforcing this as a social norm.  And if real marriage is rooted in natural law, as I think it is, then we can predict that real marriage will be the preferred form of marriage for most human beings because it satisfies their natural desires for conjugal bonding and parental care more fully and effectively than any other form of marriage.

The Political Philosophy of the Declaration of Independence in the Constitution

Was Abraham Lincoln right in arguing that the political philosophy of the Declaration of Independence is implicit in the Constitution, and thus the Declaration can help us interpret the Constitution? 

Of course, the Constitution never explicitly refers to the Declaration.  And yet much of the Constitution does seem to implicitly assume the political philosophy of the Declaration.  Moreover, if one looks at the first page of the first volume of the United States Code,  one will see the Declaration of Independence along with the Articles of Confederation, the Northwest Ordinance, and the Constitution printed as the four documents that constitute the "Organic Laws of the United States of America."

Among the justices of the current Supreme Court, Justice Clarence Thomas has been a leader in appealing to the Declaration of Independence as fundamental law for the United States and as a guide for interpreting the Constitution.  Although Justice Antonin Scalia often agrees with Thomas in their decisions, Scalia disagrees with him about this.  For example, in Grutter v. Bollinger (2003), in which the majority upheld the affirmative action admissions process at the University of Michigan Law School, Thomas and Scalia dissented, because they argued that this violated the Equal Protection Clause of the 14th Amendment.  Scalia signed on to almost all of Thomas's opinion, but Scalia refused to accept the last paragraph of Thomas's opinion, in which Thomas declared that the majority was weakening "the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause" (539 U.S. 306, 378 [2003]).  Unlike Thomas, Scalia refused to see the Equal Protection Clause as an expression of the Declaration's principle of equality.

In Troxel v. Granville (2000), the Supreme Court struck down as unconstitutional a Washington state law authorizing courts to give visitation rights to any person who argued that this was in the best interests of the children, even when this was contrary to the wishes of the parents.  The Court declared that this law violated the fundamental right of parents to rear their children.  Although Justice Scalia agreed that this was one of the unalienable rights that would be recognized by the Declaration of Independence and the Ninth Amendment of the Constitution, he dissented in this case, because he denied that judges had the authority to secure this right.

The Declaration of Independence affirms as self-evident that all human beings are naturally endowed with "certain unalienable rights," and "that among these are life, liberty, and the pursuit of happiness."  The phrase "among these" suggests that there are other natural rights that are not being enumerated here, and that "life, liberty, and the pursuit of happiness" are prominent illustrations.  Similarly, after enumerating certain rights, including "life, liberty, and property" in the first eight amendments, the Constitution in the Ninth Amendment declares: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In Troxel v. Granville, Justice Scalia argued:

"In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all men . . . are endowed by their Creator.'  And in my view that right is also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage.'  The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.  Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children.  I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right" (530 U.S. 57, 91-92 [2000]).

It is hard to see the logic of Scalia's claim that in refusing to affirm "unalienable rights" that are protected by the Constitution, he is not thereby denying or disparaging them.  He asserts that the Constitution confers upon judges the authority to secure those unalienable rights specifically enumerated in the Constitution but not those unalienable rights that are protected by the Constitution but not enumerated.  He does not support this assertion with any citation of the constitutional text or any evidence that this was the original meaning of the text.

Scalia asserts that the protection of the unalienable rights affirmed in the Declaration of Independence and the Ninth Amendment must depend upon debates "in legislative chambers or in election campaigns," without any interference by judges.  This ignores the argument by the Framers of the Constitution that the greatest threat to the rights of the people is the legislative power and the power of the majority to infringe on the rights of the minority.

In James Madison's speech to the House of Representatives in the First Congress, on June 8, 1789, in which he proposed a bill of rights as amendments to the Constitution, he stated that the purpose was to protect these rights "sometimes against the abuse of the executive power, sometimes against the legislative, and in some cases, against the community itself; or, in other words, against the majority in favor of the minority."  A declaration of rights would be "one means to control the majority from those acts to which they might be otherwise inclined."

To explain the need for what become the Ninth Amendment, Madison observed:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into his system; but, I conceive, that it may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."

The effectiveness of such a bill of rights would depend upon the judiciary: "If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

Scalia might assert that "rights expressly stipulated" indicates that judges can be guardians of those rights that have been enumerated in the Bill of Rights but not the unenumerated rights of the Ninth Amendment.  But Madison did not say that "expressly stipulated" meant "enumerated," because this would have nullified the whole point of the Ninth Amendment.  The constitutional protection of "those rights which were not singled out" was "expressly stipulated" by the Ninth Amendment.

Moreover, as Madison indicated in his speech, the rights to be protected by the Bill of Rights were not just the rights of Englishmen or the rights of Americans but "the great rights of mankind," which echoes the language of the Declaration of Independence in affirming the natural rights of all human beings.

If one lays the text of the Declaration of Independence alongside the text of the Constitution, one can easily see many points of contact between them. 

This begins with the Preamble to the Constitution.  "WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." 

This assumes the self-evident truths of the Declaration of Independence, including the truth that it is the right of the people to institute governments by consent of the governed to secure their natural rights, and that it is also their right to alter or abolish any government that has become destructive of these ends, and to institute new government that is most likely to effect their safety and happiness.

The Constitution's Preamble and Article 7 (on how the Constitution is to be ratified) implicitly invoke the natural right of the people to revolution.  The delegates to the Constitutional Convention in Philadelphia in 1787 were originally supposed to propose revisions to the Articles of Confederation.  But instead of that, they wrote a totally new constitution.  In Article 13 of the Articles of Confederation, it was prescribed that any "alteration" of the Articles would have to be approved by the Congress of the United States and by the legislature of each state.  But Article 7 of the Constitution prescribed that its ratification would require only the ratification of state conventions in nine states.  Thus, the ratification of the Constitution was an unconstitutional overthrow of the Articles of Confederation!

In The Federalist (Number 43), Madison explained that justifying the revolutionary overthrow of the Articles of Confederation and the ratification of the Constitution required an appeal to the principles of the Declaration of Independence--"to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed."  Thus, the legitimacy of the Constitution as ordained and established by the people depends on affirming the laws of nature and of nature's God as recognized in the Declaration of Independence and as superior to the positive laws of the Articles of Confederation.

The first and longest article of the Constitution is the legislative article.  This primacy given to the legislative power reflects the primacy in the Declaration of Independence of "the right of representation in the legislature, a right inestimable to them [the people] and formidable to tyrants only."

The constitutional qualifications for the two houses of the national Congress are restricted to age, residency, and citizenship, which reflects the Declaration's principle of equality, because there are no requirements of wealth, birth, education, sex, or race.  Unlike the British House of Lords, the United States Senate is not based on noble birth.  Moreover, both the national government and the States are prohibited from granting titles of nobility (Article I, sections 9-10).  This must be so in a government based on the self-evident truth that all men are created equal.

The Constitution does provide some accommodations to the existence of slavery in the South, and this has been said by some people as evidence that the Constitution denies human equality, because slavery is obviously the most unjust denial of equality.  But, remarkably, the Constitution never refers to "slaves" or "slavery."  Instead, the Constitution speaks of the slaves as "persons" (see Article I, Sections 2 and 9; Article 4, Section 2). 

As Madison observed in The Federalist (Number 54), "slaves are considered as property, not as persons," and thus slavery requires seeing some human beings "in the unnatural light of property."  In identifying slaves as "persons," therefore, the Constitution implicitly suggests the natural injustice of treating them as property. 

Those who wrote the Confederate Constitution of 1861 understood this, because while most of the language of the United States Constitution is preserved in this constitution, the framers of the Confederate Constitution repeatedly use the word "slaves," and they never refer to slaves as "persons."  Furthermore, they depart from the United States Constitution in explicitly protecting "the right of property in negro slaves" (see Article I, section 9, of the Confederate Constitution).

The taxing power belongs to Congress, and all bills for raising revenue must originate in the House of Representatives (Article I, sections 7-8).  This confirms the Declaration's condemnation of the King for "imposing taxes on us without our consent."

The Congress also has the power to declare war and to provide for the military.  This confirms the Declaration's condemnation of the King for leading "standing armies without the consent of our legislature."

The second and second longest article of the Constitution is on the executive power.  While the President has some of the powers of the British King (such as being Commander in Chief in time of war), the President does not have those monarchic powers that were often abused by the King (such as the arbitrary power to declare war).  In The Federalist (Number 69), Alexander Hamilton emphasized how different the President was from the British King.  This conforms to the teaching of the Declaration of Independence, because over half of that document was an indictment of the King of England for being "a prince" who acts as a "tyrant" and is thus "unfit to be the ruler of a free people."

The third and third longest article of the Constitution establishes the judicial power of the United States.  While judges are appointed through the nomination of the President and the approval of the Senate, judges have the independence that comes from serving a life-time term "during good behavior."  This responds to the complaint of the Declaration of Independence that the King had "made judges dependent on his will alone."

In the fourth and fourth longest article, the Constitution declares that "the citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  This can be read as affirming the Declaration's principle of equality in that national citizenship confers equality to all the rights of citizenship to all citizens.  And while the Articles of Confederation had recognized the equal entitlement of citizens to "all privileges and immunities" as restricted to "free citizens" (Article 4), the Constitution removes this restriction, which leaves the implication that slaves can be citizens and thus have "all privileges and immunities" of citizens.  This was reiterated in the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The amendments adopted after the Civil War--Amendments 13-15--can be seen as a reaffirmation of the political philosophy of the Declaration of Independence.  The authors of the Fourteenth Amendment often identified "privileges or immunities" as the sort of natural rights that had been identified by Supreme Court Justice Bushrod Washington in 1823 in Corfield v. Coryell as the "fundamental" rights, "which belong, of right, to the citizens of all free governments."  According to Justice Washington, privileges and immunities included "protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole" (Corfield v. Coryell, 6 F. Cas. 546, 551-52 [C.C.E.D. Pa 1823]).  (See also Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty [Cato Institute, 2014], 33-70.)

The most common objection to the argument that judges have a constitutional duty to enforce the unenumerated unalienable rights affirmed in the Declaration of Independence, the Ninth Amendment, and the Fourteenth Amendment is that this would turn unelected judges into super-legislators, which would deny the right of the people to rule through a majoritarian representative democracy.

This objection is evident in the opinions of the dissenters in Obergefell v. Hodges (2015).  Chief Justice Roberts describes the vigorous political debate over same-sex marriage and then declares: "That ends today.  Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law" (2).  According to the majority decision in this case, Justice Scalia complains, "the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court."

This objection is mistaken in its assumption that once a majority of the Supreme Court has made a decision, the Constitution provides no means for citizens and politicians to challenge and eventually overturn the decision.  This is false, because, as Hamilton indicated in The Federalist (Number 78), any careful reading of the Constitution shows that the judiciary is "the weakest of the three departments of power," and that it has "neither FORCE nor WILL, but merely judgment."  That is to say, the Court can exercise its judgment and try to persuade citizens and politicians that its judgment is correct; but it cannot prevail against the hostile opinions of a persistent majority working its will through the political process set up by the Constitution.

If Obergefell is a deeply unpopular Supreme Court opinion, as the dissenters in the case suggest, then it can be overturned constitutionally in many ways.  The Senate can impeach Justice Kennedy.  Or the President and the Senate can look for the first opportunity to appoint new justices pledged to overturn Obergefell. Or the Congress can deny the appellate jurisdiction of the Supreme Court in cases involving same-sex marriage.  Or the Congress can pass legislation to overturn the Court's interpretation of the 14th Amendment, because Section 5 of that amendment gives Congress the "power to enforce, by appropriate legislation, the provisions of this article."  Or the Constitution can be amended to state that same-sex marriage is not a constitutional right.  Or the other branches of government can refuse to enforce the Court's decision.  If none of these means are employed to overturn the Court's opinion, that will show that the great majority of the people are not intensely and persistently opposed to the opinion.  In fact, the majority in Obergefell waited until this year to issue this decision, because they were waiting for public opinion to shift in the direction of supporting same-sex marriage.

What this shows is that the Constitution did not set up a pure democracy.  Indeed, the word "democracy" does not appear anywhere in the Constitution.  Rather, the Constitution set up a constitutional republic (see Article 4, Section 4 ["a Republican Form of Government"], in which the majority of the people cannot get whatever they want whenever they want it, because the Constitution forces delay and deliberation. 

Alexander Hamilton in The Federalist (Number 78) argued that it would be important for "the independence of the judges . . . to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."  The judges must do their duty "as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."

But if the majority is very intense and persistent in their demands, it can eventually work its will, even against the Supreme Court. As a result, the Constitution does not make it impossible for a powerful majority to deprive individuals of their natural rights, but it does make this less likely to happen than would be the case if the Constitution had not been written to secure the natural rights of all citizens.

Ryan Anderson's Self-Contradictory and Unconstitutional Argument Against Same-Sex Marriage

"The government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose."

That's what Ryan Anderson says in his new book--Truth Overruled: The Future of Marriage and Religious Freedom (Regnery Publishing, 2015)--which is a critique of the Supreme Court's decision in Obergefell v. Hodges declaring that same-sex marriage is a constitutional right.

This remark by Anderson suggests that he would agree with my argument that marriage should be privatized in that marriage would be a purely private contract, and government would no longer issue marriage licenses.  But then he contradicts this by arguing that government should give marriage licenses only to opposite-sex couples.  Not only does he contradict himself, he also contradicts the equal protection clause of the Fourteenth Amendment of the Constitution by denying same-sex couples the "equal protection of the laws."

Here's the whole passage in which the above sentence appears (34-35):

“Defining marriage as the union of a husband and a wife does not violate anyone’s liberty.  If the government rightly recognizes, protects, and promotes marriage as the ideal institution for childbearing and childrearing, adults remain perfectly free to make choices about their relationships.  A redefinition by the state of the unique institution of marriage is not necessary for citizens to live in another relationship of their choosing.  As we’ll see in chapter 3, Justice Clarence Thomas devotes his entire dissenting opinion in Obergefell to making this point."

“The government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose. Despite the increasingly heated rhetoric from the advocates of ‘marriage equality,’ there was no ban on same-sex marriage in the decade before Obergefell anywhere in the United States.  In all fifty states, two persons of the same sex could live together, join a religious community that would bless their relationship, and choose from a multitude of employers that offered them the same benefits available to married couples.  Chief Justice Roberts highlighted this in his dissent: ‘[T]he marriage laws at issue here involve no governmental intrusion.  They create no crime and impose no punishment.  Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.’ No government license or sanction was necessary for any of this.’”

Thus, Anderson supports freedom for same-sex couples to marry and care for their children, despite his claim that this is harmful to children (62, 72, 90-91, 104, 125, 155)!!  For Anderson, the choice of same-sex couples to marry and care for children is a purely private decision that belongs within the constitutionally protected realm of liberty (34, 125).

Anderson's only point of disagreement with the privatization of marriage position is that he wants there to be governmental marriage licensing to perform the “teaching function” of teaching that children have the right to live with both their biological father and biological mother, and that the absence of either or both of the biological parents is harmful to children (39-41, 125, 160-62).  According to Anderson, the law teaches this when it issues marriage licenses to opposite-sex couples and denies marriage licenses to same-sex couples.  The marriages of same-sex couples are legally permitted, as a constitutional liberty, but they are not legally recognized with a marriage license.

But in those states where marriage licenses were denied to same-sex couples, this was not the lesson the law was teaching!  When opposite sex couples wanted to create a family in which the children would not be living with their biological father and mother, these states would give them a marriage license.  But when same-sex couples wanted to do this, these states denied them a marriage license.  This violates the equal protection clause because it’s a legal discrimination that has no rational relationship to the needs of children.

 Anderson ignores the “original meaning” of “equal protection."  To give marriage licenses to heterosexual couples but not to homosexual couples violates equal protection unless there is some rational justification for this distinction.  If the rational justification is that children are better off when both their biological mother and biological father care for them, then the states should prohibit same-sex couples, single parents, and stepparents from child care.  If the risk to children is as a rule no greater with a same-sex couple than with a heterosexual single parent or heterosexual stepparents, as Anderson indicates (150-162), then denying a marriage license to the same-sex couple violates equal protection because there is no rational justification for this discrimination between homosexuals and heterosexuals.  (Here I agree with William Eskridge--in his amicus curiae brief and in his recent article in the Cato Supreme Court Review--that the original meaning of equal protection would support the ruling in Obergefell but not Kennedy's reasoning for that ruling, which ignored original meaning.)

 If the rational justification for denying marriage licenses to same-sex couples but not opposite-sex couples is that the state wants to promote families in which children are under the care of both their mother and their father, then the state should establish covenant marriage laws like those in Louisiana, Arkansas, and Arizona.  Those couples with a covenant marriage license would be denied any right to a divorce except when they prove that one of the spouses is guilty of abuse, abandonment, or adultery.  And, indeed, Anderson says that this has always been the best marriage law for promoting “real marriage” (39-41).

In fact, Anderson says, "the collapse of our marriage culture" was caused not by same-sex marriage but by heterosexual marriage with no-fault divorce.  "We have heterosexuals, not gays and lesbians, to blame for decades of marital instability, with the consequent harm to women, to children, and especially to the poor.  But we can expect same-sex marriage, by ratifying the adult-cenric vision of marriage, to accelerate the collapse" (162).  If that is true, and state governments want to promote the ideal of "real marriage," then it would be rational for states to give "real marriage" licenses only to heterosexual couples who enter covenant marriages and give up no-fault divorce rights.

Under this system, couples might be free to choose a marriage license that allowed for “no-fault divorce,” but the constitutional standard of equal protection would require that this kind of marriage license would have to be available for same-sex couples as well as opposite-sex couples.  State law might identify the covenant marriage license as "real marriage" and the no-fault divorce marriage license as "romantic companionship," which would teach a clear lesson about the superiority of the one over the other.

A reasonable alternative to this would be to totally privatize marriage, in that government would no longer issue marriage licenses, and marriage would become a purely private contractual arrangement.  Couples could then choose between "real marriage" contracts in which divorce would be difficult and "romantic companionship" contracts in which divorce would be easy.  In fact, Anderson accepts a legal system in which marriage has been largely privatized, because “the government should not be in the business of affirming our love lives but should leave consenting adults free to live and love as they choose.”  But then Anderson contradicts himself by saying that government should be in the business of affirming the love lives of opposite-sex couples by giving them marriage licenses that are denied to same-sex couples, even when the likelihood of harm to their children is as great for the opposite-sex couples as it is for the same-sex couples.  This is not only self-contradictory but also contradictory to the original meaning of the equal protection clause of the Fourteenth Amendment.

If "real marriage" is rooted in natural law, and thus is not an artificial creation of positive law, then such marriage will stand on its own natural ground in the natural inclinations of human beings, without any need for governmental licensing that violates the Constitution's equal protection clause.