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 Monday, December 19, 2005
Taking on the Fearsome Syllogism/Crank
A rather logical discussion by "Crank" on the NY appelate court decision, and in particular why he finds the syllogism "some nonprocreative couples marry therefore not permitting SS couples to marry is discrimination" unpersuasive: http://www.redstate.org/story/2005/12/12/102255/49 "There's a couple of critical points here. Proponents of same-sex marriage often treat the connection between marriage and children as an argument that can be disposed of by syllogism: that since heterosexual couples are able to marry even if they have no intention or ability to have children, it must be the case that bearing and begetting children has no rational relationship to marriage and can't be a proper basis for distinguishing between opposite-sex and same-sex mariage. There are, however, four major reasons for finding this argument unpersuasive. The first, not discussed above, is one I'll touch on just briefly here: privacy. The state can determine just by looking at a same-sex couple that they're not likely to bear children, and can't do so through traditional means. With the exception of the aged and a few other classifications, that's not true of opposite-sex couples: the government would need to conduct an intrusive investigation to ascertain that an opposite-sex couple was infertile, not having sex, using birth control or otherwise unable or unwilling to bear children. The next two reasons are related. As the court notes, the rational basis test doesn't require a perfect "fit" between the preferred solution adopted by democratic policymakers and the ends they seek to promote. There are scores of examples of government programs, tax credits and the like that provide benefits to a group of people or institutions not because they will all advance the interests the government is trying to promote, but because it can be rationally determined that they are more likely than another group to provide the desired social benefits. If we required a perfect fit, precious few government programs could survive rational basis scrutiny. The third, related reason is that society as a whole has an interest in promoting childbearing, an interest the Hernandez court dryly notes is "critical, but presently undervalued." A look at the demographic crisis in Europe, Russia and Japan is all that needs to be said for the importance of this interest: without a decent level of childbearing, society becomes top-heavy with old people and enters a spiral of declining population, which is problematic on many levels. . ." posted by maggie at 11:04 AM | link 
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"With the exception of the aged and a few other classifications, that's not true of opposite-sex couples: the government would need to conduct an intrusive investigation to ascertain that an opposite-sex couple was infertile, not having sex, using birth control or otherwise unable or unwilling to bear children."
I'm perfectly happy to concede that intrusiveness has at least some validity as a consideration, and _could_ in principle be used as a basis for deciding to distinguish between rejecting same-sex couples and rejecting other non-procreating couples. It's just that, to put it bluntly, I flatly disbelieve that most of the people invoking it ever _did_ use it as a basis for anything. When we bring up the issue of non-procreating couples, it's by way of inviting the lurkers to conclude that anti-SSM advocates were never the least bit serious about the major premise in the first place. And faced with this counter-argument, we find little to add. We just rest our case and straight away invite the lurkers to conclude that the anti-SSM advocate most likely isn't the slightest bit serious about either the original premise _or_ the supposed principled exception.
Of course, that's not to say that an anti-SSM advocate _couldn't_ be serious. After all, it is approximately the position of the Catholic church that getting married without an intention to procreate is a Bad Thing. Moreover, to give it credit for consistency, it's prepared to push for intrusive measures such as banning contraception to enforce this ideal. But this is a position well out of the mainstream, which the Catholic church can't even keep its own laity squarely behind. The number of people paying lip-service to the principle is much greater than the number of orthodox Catholics. And this matters to the force of the anti-SSM argument even when a Catholic makes it. After all, although Maggie et al. are practically phobic about filling in the details in a coherent way, the argument in broadest outline is that allowing a major new class of non-procreating couples into the institution will somehow damage it by changing attitudes towards it. But if almost nobody seriously believes that non-procreating couples are a blot on the institution in the first place, then it's hard to see how that could happen.
After all, it is approximately the position of the Catholic church that getting married without an intention to procreate is a Bad Thing.
It is obviously an approximate position that marriage and children are inextricably related -- and approximately have been considered to be, throughout all time and space and peoples. Not exactly an "out of the mainstream" position at all.
"It is obviously an approximate position that marriage and children are inextricably related -- and approximately have been considered to be, throughout all time and space and peoples. Not exactly an "out of the mainstream" position at all."
Quite so, but then it's not the position I was just talking about - it's much vaguer and doesn't clearly entail either the position I was talking about or opposition to SSM.
Marriage grants the right to procreate, it does not require the couple to procreate, or even to intend to procreate. It simply says that society approves of the concept of this couple having children together. Being granted the right to procreate with someone is what brings on the responsibility and commitment and benefits and protections, not actually procreating. Infertile couples, like all couples, are granted the right to procreate when they marry, even if they are 80 years old. If we do not want to grant a couple the right to procreate, we do not let them marry. Siblings are perfectly fertile together, but are not given the right to procreate - they may not marry. Same-sex couples should not be given the right to procreate either, for similar reasons.
Granting two men or two women the right to procreate by granting them marriage forces us to accept same-sex procreation technology in principle, it would require us to invest millions of dollars in making it safe, and of course would put all of the children created that way at physical risk and deprive them of a link to half of humanity. We should not allow scientists to begin manufacturing people, we should ban all forms of conception that do not unite a man and a woman.
"Marriage grants the right to procreate, it does not require the couple to procreate, or even to intend to procreate. It simply says that society approves of the concept of this couple having children together."
Certainly the idea of marriage as a licence to procreate is an important part of the traditional understanding of marriage. Moreover, if you combine it with some argument that same-sex couples would likely be unfit parents, then you have the makings of an argument against SSM. The counterargument is that, whatever armchair philosophy might suggest, as an empirical matter it's simply not true that same-sex couples simply are detectably inferior parents. But I don't propose to thrash that issue in this thread, because I'd like to get back to the argument of Maggie's that I was criticizing, which is quite different.
In fact I'd like to turn your words against her. After you explain that marriage grants the right to procreate, you emphasize that it does not require intent to procreate, or actual procreation. Now I happen to agree with you about that, but it's not what Maggie thinks. It's hard to be sure exactly what she thinks of course, because she resolutely evades being more precise, but it is apparently something along the lines of there being a duty to procreate such that lack of intention or lack of ability is disqualifying to the couple if caught and degrading to the institution if permitted. (Most likely it's just the orthodox Catholic position which is roughly that there is a duty to attempt to consummate and a duty not to put any obstacles in the way of the conception, pregnancy and childbirth that will tend to result.) The objection in this argument is the exact opposite of the one you alluded to. That is, it's not that if same-sex couples _did_ rather improbably procreate, that would be a Bad Thing. Rather, it's that same-sex couples are obviously _not_ going to procreate and _that's_ a Bad Thing.
Now of course marriage could be simultaneously a licence and a duty to procreate, so the two arguments are not necessarily incompatible. But if Maggie wants to use the latter, as a stickler for honest debate I want to see her articulate and argue for the premise. And as a mischievous SSM proponent, I _really_ want her to articulate and argue for the premise, because I want to see the catfights start between her and people like you when you realize what she's actually proposing.
Yeah, I'd like to see Maggie articulate her position on the right of same-sex couples to procreate, and how it relates to marriages. I'd also like to know how she feels about the right to attempt to create a person from the genetic material of two people of the same-sex, without bringing up marriage. That question obviously needs to be dealt with independently of marriage, since people might try it whterh the couple is married or not.
Every other question of marriagability has always revolved around the question of whether or not this couple should be allowed to create children together, the question of whether a man should be able to marry a man should not be suddenly changed to be about their ability to properly raise children, or about their deserving society's respect as a couple. The Lovings did not have to present and evidence that they loved each other, or that they would be able to raise children as well as same-"race" couples. They would not have settled for a "marriage" that required them to use a dark skinned man as a sperm donor, or otherwise prohibited them from having children together but gave them hospital visitation and social security benefits. They wanted to have sex and have children together, and their right to do that is what was at issue before the court. It should still be.
"I'd also like to know how she feels about the right to attempt to create a person from the genetic material of two people of the same-sex, without bringing up marriage. That question obviously needs to be dealt with independently of marriage, since people might try it whterh the couple is married or not."
For what it's worth my position is that there's no fundamental problem creating people from the genetic material of two people of the same sex - providing it worked well. Unfortunately, it would be such a complicated process that, unless extraordinary and possibly infeasible levels of care were taken, in the course of perfecting it we'd produce any number of deformed, sickly or retarded people. I think to the extent allowing same-sex couples to get married gives them a licence to procreate, I think it's perfectly sensible to construe it as conditional on the method being reliable enough to be ethical given the circumstances of the particular couple. If as for the considerable majority of opposite-sex couples that means just having sex, good luck to them. If as in the case of a woman with a deformed uterus, that means a technological intervention like donating eggs and relying on a surrogate mother for the pregnancy, it's reasonable to override the general licence and forbid the specific procedure if it's excessively likely to produce a defective person.
Yes, but forbidding a specific procedure does not prohibit any opposite sex couple from procreating. First of all, it would be private medical information that the public would not consider in granting the right to procreate - obviously sex (gender) is public, so there is no question that a same-sex couple would require unethical procedures. Second, regardless of the saftey of the procedures that might be available to couples, we can simply approve of the concept of children or not approve of the concept of children born to two same-sex proginators. We don't even have to look at safety, or look at particular technologies, we can just look at the effect such a concept would have on social values and rule it out in principle, because procreation should require both sexes for all people - no one should be manufactured. Medicine is not manufacture - healing a woman's uterus is medicine, but doing something that even healthy people could not be able to do is not medicine.
Hey Maggie and Eve, have you given any more thought to this? Do you think that the right to procreate should be granted to same-sex couples? Can you explain better why this idea isn't working for you?
"Yes, but forbidding a specific procedure does not prohibit any opposite sex couple from procreating."
It depends on whether they're able to procreate under their own steam. If they need medical intervention, then prohibiting a procedure _does_ prevent couples who might use it from procreating if it's the only procedure with any prospect of success at all. And medical procedures are regulated - doctors regulate themselves and legislatures regulate doctors.
"First of all, it would be private medical information that the public would not consider in granting the right to procreate"
Is granting licences to procreate actually important? If so, why would the public not want all relevant information considered? If not, why are we bothering? And if we're bothering, why are we trying to shoehorn all licensing into a one-time all-or-nothing grant? Why not something more like car licensing where we license the person to drive based on skill and then separately license the technology (the car).
" - obviously sex (gender) is public,"
Yes, but it's also public information that we often deliberately disregard because it's unfair to consider it - why not here?
"so there is no question that a same-sex couple would require unethical procedures."
Not only is it not beyond question that the procedures a same-sex couple would require would be unethical, no argument of any sort to that effect has yet been presented.
"We don't even have to look at safety, or look at particular technologies, we can just look at the effect such a concept would have on social values"
What effect?
"and rule it out in principle, because procreation should require both sexes for all people - no one should be manufactured."
Why?
"Hey Maggie and Eve, have you given any more thought to this? Do you think that the right to procreate should be granted to same-sex couples? Can you explain better why this idea isn't working for you?"
I think you'll find that to the extent they regard it as a serious possibility (and the technology is probably a century away, if it's feasible at all), they're against it for multiple reasons, including that the technological intervention would be so large as to amount to playing God, and that same-sex couples would supposedly be lousy parents because of not being a matched set of sexes.
However I think you'll also find that it's not their main objection to SSM and that their main objections are (i) they also want marriage to be understood as a licence to child-rear and they don't want to be seen granting that licence to same-sex couples because they think such couples are likely to be lousy parents, (ii) they take it for granted that same-sex couples _won't_ procreate so if they're admitted marriage won't be "about" procreation anymore.
It depends on whether they're able to procreate under their own steam. If they need medical intervention, then prohibiting a procedure _does_ prevent couples who might use it from procreating if it's the only procedure with any prospect of success at all.
There is a difference between preventing and prohibiting. If the procedure they want to use is prohibited, they are prevented from using that procedure. But they are not prohibited from procreating. They might have to wait for another procedure to be invented, or wait for their health to come back, and maybe the final result will be that they will never have kids. But they were never prohibited from having kids, and never prohibited from attempting to have kids. The marriage license endorses the idea and says "you have our blessing to go and try to have kids." A same-sex couple ought to be prohibited from attempting to conceiving kids, whether or not they intend to, however safe the technology is.
Yes, this is one of the rare cases where it really makes a difference what sex the people are. If they are both publicly and officially of the same sex, attempts at combining their gametes would be unethical, even more so than if they were brother and sister, married to other people, or children (also, not coincidentally, all public and official information). Not only would it be unsafe to perform these experiments on people, it is already a terrible waste of resources, and since it may never work, it is terribly cruel to offer it as a hope to children that might want to have children with the person they love someday. (At least one doctor says it might be here in three to five years, but it might also never become possible) It would deprive the people conceived of a connection to both sexes, which could cost them something psychologically, not just physiologically. It would strain the relationship of all men to all women, since we would no longer need each other to reproduce ourselves. It would open the door to further experiments in genetic engineering, making the public used to the idea of going to labs to order babies that couldn't be conceived of naturally, and the safety issues would become focused on the poor people who continue to get pregnant naturally, subjecting their children to their parents less than perfect genes. It could lead to a Gattaca-like future where no one can have their own children anymore, choosig instead to have 'better' children. And why we would want to bother to raise these products is beyond me, I suspect it would lead to conditioning schools, where kids are raised entirely by the state.
However I think you'll also find that it's not their main objection to SSM and that their main objections are (i) they also want marriage to be understood as a licence to child-rear and they don't want to be seen granting that licence to same-sex couples because they think such couples are likely to be lousy parents, (ii) they take it for granted that same-sex couples _won't_ procreate so if they're admitted marriage won't be "about" procreation anymore.
Which are both such dumb arguments it leads me to believe they are just offering them as token arguments, to make us all think that the anti-SSM people are doing their best and there are no other arguments besides what these experts are offering. And then, when SSP is suddenly announced, and when studies show how great same-sex parents really are (and why wouldn't they be - parents have very little influence on children, as long as they feed and clothe them properly), then Eve and Maggie's arguments will be declared beaten, and turned around and used to justify SSM (just like the NY court decision).
Maggie doesn't want us to discuss motives, so I'll just say that if her motivation is setting things up for the Brave New World, she is doing a great job. If it isn't, then she should drop her arguments and argue that same-sex procreation is a bad idea and should not be allowed.
John H.: "If the procedure they want to use is prohibited, they are prevented from using that procedure. But they are not prohibited from procreating. They might have to wait for another procedure to be invented, or wait for their health to come back, and maybe the final result will be that they will never have kids. But they were never prohibited from having kids, and never prohibited from attempting to have kids."
OK. I get it that your main concern is not that same-sex procreation (SSP) might fail horribly, it's that it might succeed. Thus, for the sake of argument let's assume that we've banned all procedures that don't produce healthy kids with odds near that of natural methods.
"Yes, this is one of the rare cases where it really makes a difference what sex the people are."
Why?
"If they are both publicly and officially of the same sex, attempts at combining their gametes would be unethical, even more so than if they were brother and sister, married to other people, or children (also, not coincidentally, all public and official information)."
I get it that this is your position, but why?
"Not only would it be unsafe to perform these experiments on people"
We're assuming for the sake of argument that this can be worked through with as little collateral damage as current successful procedures. If it can't be, I wouldn't want it done, and I'm confident scientists, doctors, ethics committees etc wouldn't either.
"it is already a terrible waste of resources"
Certainly it's likely to take a century of research to make it feasible and that will be very expensive, but it's also likely to produce useful spin-offs in animal husbandry, as well as advancing human knowledge in general. And if the final procedure is very expensive, we'll just have to lump it in with other elective procedures such as most cosmetic surgery. (If you doubt that there will be the will to do that, reflect that the medical care system in the US is headed for a financial meltdown and the next ten or twenty years will give us _lots_ of practice in ruthlessly rationing expensive medical care.)
"and since it may never work, it is terribly cruel to offer it as a hope to children that might want to have children with the person they love someday."
As someone who's confronted the choice between an otherwise satisfactory relationship and easy procreation personally, I say save your pity. If the technology never comes to fruit, too bad for me. If the technology matures just barely too late for me to take advantage of it, too bad for me. No matter how worked into a lather I might get from waiting or just missing out, I wouldn't dream of standing in the way of the research because of it. If people took that attitude we'd never have any medical technology.
" It would deprive the people conceived of a connection to both sexes, which could cost them something psychologically, not just physiologically."
That's certainly a potential problem to be considered, except that it _has_ been considered and empirically it turns out not to be a significant problem at all.
"It would strain the relationship of all men to all women, since we would no longer need each other to reproduce ourselves."
Since when has that ever been the main reason that men and women related to one another? It's in the mix certainly, and from the point of view of society at large it's particularly important, but at an individual level it's not head and shoulders above sexual services and support/housekeeping services.
"It would open the door to further experiments in genetic engineering, making the public used to the idea of going to labs to order babies that couldn't be conceived of naturally, and the safety issues would become focused on the poor people who continue to get pregnant naturally, subjecting their children to their parents less than perfect genes."
Very possibly. So what? First it's not as if this is a particularly slippery slope. There's unlikely ever to be a significant faction that simply isn't concerned about the effects of the technology on the individuals produced or on society as a whole. Liberals will tend to err on the side of too-quick progress but conservatives will tend to err on the side of knee-jerk defence of fondly remembered Good Old Days that actually weren't all that good for many. Second, we will all have our noses rubbed in these issues in the very very imminent future in the context of genetic testing - long before the technology of SSP is ripe.
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