Michael asked if someone could lay out the argument underlying Robby's posting of the New York Times article setting forth findings about a perceived tendency of same-sex couples to adopt "open" relationships, including open marriages. I would never purport to speak for Robby, but here's my best stab at the argument:
One's view of same-sex marriage turns, at least in part, on one's estimation of how malleable the institution of marriage is. Many people who support SSM strongly favor marriage as a foundational social good in that it promotes, among other things, mutual caregiving, stable relationships for child-rearing, and the total and exclusive self-giving of one person to another. Don Browning, for example, argues that marriage is particularly important for males because “paternal investment in children, paternal certainty, and monogamy tend to go together.” If SSM is understood to maintain these functions of traditional marriage, and if the gender of the participants is incidental to those functions, then maybe there's no problem. (I'm putting to the side the ontological arguments about marriage made by Robby and others.)
But what if the gender of the participants is not incidental to those functions? This possibility could take two forms: 1) biological -- i.e., the suggestion that men are, on average, more inclined toward sexual promiscuity, and marriage's "restraining" function may be less powerful when the marriage is made up of two men; or 2) sociological -- i.e., same-sex couples will tend to be less committed to the traditional understanding and functions of marriage. If, say, half of same-sex couples will end up adopting an "open" marriage, does the pedagogical dimension of marital practices mean that open marriages will be more likely to gain mainstream acceptance, with monogamy viewed as simply another possible marital characteristic to be bargained for by the spouses, rather than an intrinsic part of marriage? To wildly overstate the factual premises of the argument, if a crystal ball could show that the widespread adoption of SSM would lead, in 40 years, to nearly half of all marriages being intentionally non-monogamous, should that give SSM supporters pause? I believe it should.
The problem, of course, is that there is no way to know what marriage will look like in 40 years. I'm not even sure what the state of committed same-sex relationships is right now. The Times article reported on gay couples in San Francisco. I'd be interested in the practices of same-sex couples in Chicago, Minneapolis, or Atlanta. I'd also be interested in exploring cause and effect. Does the apparent tendency of same-sex couples, at least in the Bay Area, to reject monogamy (relative to heterosexual couples) reflect a deliberate devaluing of marriage, or does it reflect a subculture that has been excluded from the social mechanisms that help foster and encourage monogamy? Will the monogamy gap eventually shrink if same-sex couples are included in marriage? And would the closing of the gap be driven by rising rates of monogamy among same-sex couples or by falling rates among heterosexual couples?
So can the practices depicted in the Times article carry the weight that SSM opponents might assign it? I'm doubtful, though to be fair, I don't think their entire argument would rest on that depiction. Does SSM represent changes to marriage beyond the gender of the participants, and if it does, are the changes likely to impede the essential social functions of marriage? In my estimation, that's the crux of the argument that needs to be engaged by both opponents and proponents of SSM.
Tuesday, February 9, 2010
I've just posted a new paper with that title on SSRN. Here's the abstract:
What does it mean for me to be a Catholic doing legal theory, even when I am not self-consciously trying to do “Catholic legal theory?” One simple response is methodological: I might be describing the Christian tradition, I might be proclaiming its truth, I might be speaking prophetically to power, or I might be speaking pragmatically about reasonably debatable methods by which to cultivate the common good. At different points, if I want to contribute to the full flowering of the Catholic legal theory project, I hope that I do all of these. At a deeper level, articulating what I do as a Catholic legal scholar must also account for what I do as a legal scholar. One concern is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by my faith tradition, rendering them less authentic and even less human. In reality, though, my faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence. When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving. Similarly, when I use faith in my scholarship as a bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world. The Catholic legal theory project has much to contribute to legal scholarship, starting with the anthropological question of what it even means to be human. (This essay is based on a presentation at Seton Hall’s conference, “Religious Legal Theory: The State of the Field” in November 2009.)
Any feedback readers have will be welcomed enthusiastically.
Sunday, February 7, 2010
Folks probably feel a little bit silly getting all worked up about that Tim Tebow ad before they had even seen it, right? Maybe the protesting groups would issue a statement saying something like, "While this ad is unobjectionable, it is important to remain steadfast in our defense of a woman's right to choose." Save some face, stand up for the cause, move on. Right? Wrong:
The 30-second "Celebrate family, celebrate life" ad starring Heisman winner Tim Tebow ended with a surprise -- Tim Tebow tackling his mother after she says she nearly lost him during her pregnancy. The pair jokes that they have to be "tough" with all the family has been through. . . .
The Women's Media Center, which had objected to Focus on the Family advertising in the Super Bowl, said it was expecting a "benign" ad but not the humor. But the group's president, Jehmu Greene, said the tackle showed an undercurrent of violence against women.
Thursday, February 4, 2010
Andy Koppelman has posted his new paper, No Respect: Brian Leiter on Religion. Here's the abstract:
In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.
MoJers might want to check out DePaul's new Journal of Religion and Business Ethics. The inaugural issue features articles by my St. Thomas colleagues Bob Kennedy ("The Practice of Just Compensation") and Mike Naughton ("Culture as the Basis of the Good Entrepeneur") (with Jeff Cornwall).
Tuesday, February 2, 2010
As I've stated before, I think it's great that there will be an ad during the Super Bowl celebrating life, and I thank Tim Tebow and his mom for having the courage to step up on an issue like this. To be honest, though, I wish that the ad featured a single mom who raised her child in a poor neighborhood, and watched her child struggle to find steady work as an adult, or parents who want to express their love and thanksgiving for their child with special needs. Choosing life is its own blessing; the blessing is not that you'll receive a world-conquering hero in return. I know that the Tebows would be celebrating life regardless of the Heisman Trophy, but I think the life-affirming message is even more powerful when life is celebrated in circumstances where the culture is prepared to see only hardship and regret.
The other wrinkle is that Pam Tebow ignored her doctor's advice about her health. This makes the message a bit more complicated, it seems. William Saletan writes:
Pam's story certainly is moving. But as a guide to making abortion decisions, it's misleading. Doctors are right to worry about continuing pregnancies like hers. Placental abruption has killed thousands of women and fetuses. No doubt some of these women trusted in God and said no to abortion, as she did. But they didn't end up with Heisman-winning sons. They ended up dead. . . .
On Sunday, we won't see all the women who chose life and found death. We'll just see the Tebows, because they're alive and happy to talk about it. In the business world, this is known as survivor bias: Failed mutual funds disappear, leaving behind the successful ones, which creates the illusion that mutual funds tend to beat market averages. In the Tebows' case, the survivor bias is literal. If you're diagnosed with placental abruption, you have the right to choose life. But don't be so sure that life is what you'll get.
And:
If Pam Tebow's abruption had taken a different turn, her son would be just another perinatal mortality statistic, and she might be just another maternal mortality statistic. And you would know nothing of her story, just as you know nothing of the women who have died carrying pregnancies like hers.
Thoughts?
