Mediocre Moralism on Marriage

The marriage fight has come to Alabama. I may be able to get to some of the interesting specifics of that fight at some point, but this entry is about just one commentary on the saga. Brian Epstein, who apparently is an assistant philosophy professor at Tufts University, was given space in The New York Times to dispense his two cents about this debate. The main reason the piece is notable is its sheer weakness given Epstein’s position and the amount of space he was allotted in such a prominent newspaper.

Epstein begins with the requisite name-calling of Alabama Supreme Court Chief Justice Roy Moore just to establish his liberal bona fides. He calls Moore “a provocative and out-of-touch bigot.” What’s funny about this entirely uncreative line is its obvious contradiction. How exactly can one be out-of-touch and yet provocative? Wouldn’t you have to have your finger on the pulse of the public in order to provoke a reaction? Of course, throwing out a putdown that makes sense is not the point: Epstein simply wishes to convey to his readers (most of whom are hard-core liberals because those are the regular readers of the NYT) that he despises Moore just as much as they do. It also taints anyone who agrees with Moore that marriage should reserved for opposite-sex couples with the same label. But what needs to be asked is: what standard is Epstein using to define Moore and those who believe likewise as out-of-touch bigots?

We will return to that question in a moment, but first, the more immediate reason Epstein had to start with the insult is because he then does what many of his readers would not expect: Epstein concedes that Moore has a point in his defiance of a federal district court order declaring Alabama’s marriage laws to be unconstitutional. Technically, Epstein grants Moore two points. First, Epstein agrees that proponents of same-sex “marriage” are redefining the term “marriage.” Second, Epstein agrees that the U.S. Supreme Court cannot tell society how it defines marriage because society must do that on its own.

On their face, these would seem to be enormous concessions. Indeed, Epstein states that if one concedes that proponents of same-sex “marriage” are redefining the term “marriage,”

“then Moore’s overall view seems almost to follow as a matter of logic. We can’t just change definitions at will: that’s not how language works. And certainly, a court has no power to change the definitions of words by fiat. At best, the courts can introduce a new word to refer to this new form of marriage. Maybe they can call it ‘schmarriage.’ If they do that, they can attach whatever legal rights they want to it. Just don’t call it marriage.”

But, of course, it turns out Epstein is not conceding anything of importance. Instead he just decides to be a mediocre moralist without admitting that is what he is doing. After admitting that proponents of same-sex “marriage” (like himself) are redefining the term “marriage,” Epstein essentially says, “So what? Our definition is better anyway.” In his words: “[T]he old institution [of marriage] is now being replaced with a better one.”

Epstein says this without explicitly explaining why it is the case, which, if you think about it, is not surprising because he is making an extraordinarily audacious claim. Epstein is saying that a social institution that has been around for thousands of years in nearly every culture across all religions and that the Supreme Court itself has stated is the cornerstone of our social development (see Lehr v. Robertson, 463 U.S. 248, 256-57 (1983)) is inferior to the new institution proponents of same-sex “marriage” have created in that past 10 years. The possibility that Epstein is correct given such circumstances is infinitesimal.

This is the point at which proponents of same-sex “marriage” usually note that slavery also has been around for thousands of years in nearly every culture across all religions and that the Supreme Court lauded that institution 150 years ago in the Dred Scott case. To which I respond, if you think marriage is like slavery, then why are you seeking to be a part of it, or even — going by Epstein’s version — trying to “improve” upon it and yet keep the same term? No one says, “You know, that slavery thing wasn’t so bad. All we needed to do was tweak it a certain way and the human race would have been better with it.” Equating marriage to slavery in order to deny the fact of marriage’s encompassing and enduring nature is a pejorative game. Just because two institutions are old and nearly universal does not mean they are the same. Slavery does not create family. Slavery does not provide an optimal environment for raising children. Slavery does not control any social evil. No one forces anyone to get married but no one chooses to be a slave.

If you read between the lines of what Epstein says about the “old” institution of marriage, it appears that his primary reason for why the old institution is inferior to the new one is that traditional marriage enforces “traditional” gender roles. In other words, traditional marriage leads to the subjection of women. Although Epstein does not directly say it, presumably the reason the new definition of marriage does not cause this problem is that it is not based on gender. Thus, eliminating gender eliminates subjection.

Modern radical feminism takes such a view, i.e., the view that if you eliminate all alleged differences between men and women then all vestiges of inferior treatment of women will disappear, but you would be hard-pressed to find anyone else who believes this. This is probably because the view has the decided disadvantages of being neither possible nor true. It isn’t possible because, try as some might, differences between men and women cannot be completely eliminated. Thank God for that because the world would be a terribly boring (not to mention much less populated) place without those differences. It isn’t true because people are fallen and regrettably some will always view themselves as superior to others. Some men equate the fact that they are different than women with being superior to women. Obviously people can be equal and different at the same time, but humans have been making mistakes on this score for a very long time in one form or other, whether it is based on nationality, race, gender, physical or mental abilities, and so on. The institution of marriage did not create that kind of thinking.

To the degree certain aspects of the legal institution of marriage reflected such thinking, it was dead wrong, but I would argue that such was not the intent of the law. If anything, the goal was to prevent men from taking advantage of women and shirking their responsibilities toward children. Moreover, marriage as God designed it (which is the ideal to which the social institution should aim) demands even more than equal treatment. God commands men and women in marriage to treat each other as better than themselves. In other words, I must treat my wife as more important than myself (which in my case is quite true because she is the most precious person in the world).

Moreover, if traditional marriage is so controlling of women, then why are there so many marriages even in this “liberated” era? In fact, why would same-sex couples want to be associated with such an institution to the degree that they want the same term attached to their relationships? And how does genderless marriage decrease the supposed subjection of women “caught” in heterosexual marriages?

Epstein’s claim is the worst kind of straw man. He asserts that traditional marriage is something it is not and then claims the new definition of marriage cures that pretend ill, which it does not. So, again I ask, what makes Epstein’s version of marriage “better” than the one that has been in use for thousands of years (and therefore also renders supporters of traditional marriage “bigots”)?

Another possible answer to this question is that expanding marriage to another group of people makes it a “better” institution. But it does not automatically follow that expanding an institution makes it better. I am tempted to use Obamacare here, but let’s stick with marriage. Clearly society (as yet) does not agree that polygamy would make the institution of marriage “better,” but that also involves making marriage more “inclusive.” There is an age of consent in the law for marriage, but no one (as yet) is contending that the institution of marriage would be “better” if we opened it up to children. My point here is not to take a trip down the slippery slope, but rather to highlight that Epstein provides no substantive criteria for establishing that the new definition of marriage is “better” than the traditional one.

A third potential answer to this question is that Epstein’s definition of marriage is a “better” one because it is a new idea.  This reflects scientific evolutionary theory in the physical world bleeding into views on social institutions.  Supreme Court Justice Anthony Kennedy apparently takes this view of the matter because he stated in United States v. Windsor (2013), which declared the federal Defense of Marriage Act unconstitutional, that the new definition of marriage “reflects … [an] evolving understanding of the meaning of equality.” 133 S.Ct. at 2693.  But history is littered with “new” ideas that spectacularly failed (eugenics and the Edsel just to name a couple). The newness of an idea does not establish its superiority and history has not shown that social institutions automatically “evolve” in the sense that they always change for the better over time. In fact, given that the traditional institution of marriage has withstood the test of thousands of years of operation and the new definition by its nature does not lead to propagation of the species, it would seem logical at least to question the evolutionary superiority of the new idea.

Ultimately, Epstein’s claim that proponents of same-sex “marriage” are replacing the traditional institution with a “better” one is nothing more than a bald opinion clothed in the self-righteous assurance that because he believes in it, it must be true.  But even philosophy professors should have to provide some authority other than their own grand pronouncements as a basis for their assertions of social superiority.  Perhaps Epstein’s authority is Justice Kennedy, but that conveniently leads us to the second claim in Epstein’s piece.

Epstein’s second supposed concession — that the courts cannot redefine the term marriage — is another feint. Although he agrees with Moore that courts cannot change an entire institution, Epstein essentially claims that it does not matter what the courts have done because opinions in society on same-sex relationships were changing anyway. As he puts it:

“[E]ven before the courts started to weigh in, things were changing. In the last decades, changes in belief, practice and function have been paving the way for changes to the law. We are well underway in discarding the old institution and building a new one.”

But then Epstein appears to double back on his own claim, stating:

“The courts do have a lot of influence. Directly, how the courts interpret the law changes what the law is. But their greater power is indirect: Their decisions affect what people believe, since the courts are treated with enormous respect and deference. In time, these spreading beliefs cascade into practices, and ultimately into the social functions of marriage.”

So, again, which is it, Mr. Epstein? Was this all going to happen without the intervention of the courts or are they the engine that drives the change in people’s beliefs? On a societal scale, it is nearly impossible to attribute changes of opinion to a singular entity. But if we look for major causes of the change on this issue, only the naive or those attempting to deliberately mislead would deny the leading role played by the courts.

In 2003, in Goodridge v. Dep’t of Pub. Health, the Massachusetts Supreme Judicial Court forced its state to become the first in the nation to legalize same-sex “marriage.” At the time, few thought such a decision was likely — including the U.S. Supreme Court which took pains to avoid that very issue the same year in Lawrence v. Texas — and most attributed it to Massachusetts’ extreme liberalism. No other state followed Massachusetts’ lead until 2008. After the federal district court’s decision in early February concerning Alabama’s marriage laws, same-sex “marriage” has been legalized in some form in 38 states. Of those states, only 12 actually have voted to legalize same-sex “marriage.” Federal and state courts have forced a change in the law in the other 26 states. President Obama recently said that the country has “hit a critical mass of states that have recognized same-sex marriage” and that it “doesn’t make sense for us to now have this patchwork system” of laws on the subject. That “critical mass of states” has been reached not by democratic choice, but by judicial imposition.

It is absurd to pretend that the courts have not been the linchpin to the strategy of proponents of same-sex “marriage” in their quest to gain recognition. Yet, Epstein would have people believe that the change would have occurred anyway without providing even a single historical fact to support such a notion.

The reality is that courts possess an inordinate influence over what people think about social issues. Many people think abortion is okay just because the Supreme Court said so. The “right to die” movement faded from social consciousness in 1997 after the Supreme Court concluded in Washington v. Glucksberg that there was no such fundamental right in the Constitution. It has only been since 2010 that the Supreme Court decided in District of Columbia v. Heller that the constitutional right to bear arms is an individual right, and yet the issue is now hardly debated.

One could argue that these issues are “settled” because the Court’s decisions simply reflected the mood of the country, but the reality is that at the time the Court heard those cases, the issues were hotly contested. One might also venture that the country’s acceptance of the Court’s decisions on even the most controversial issues demonstrates the people’s profound respect for the law, but we live in a land where prisons are overfilled and some kind of protest occurs nearly every day.

The unavoidable conclusion is that the abject acceptance of what courts determine on issues occurs because people (erroneously) believe that judges know better than they do. The lawyers filing suits challenging traditional marriage laws know this. Obama knows it. Epstein knows it. Most importantly, the judges know it. Yet, they all want to maintain the facade that the redefinition of marriage is occurring because of an overwhelming desire for change that flows from the will of the people — or as Justice Kennedy put it — from the “evolving understanding” of the community.

It may reflect Justice Kennedy’s understanding. It certainly reflects Epstein’s understanding. But whether it is an “evolving” or devolving” understanding is another matter because proponents of this view — like Epstein and Justice Kennedy — have yet to tell us what standard they are using to judge that the new definition of marriage is a “better” or more “evolved” one than the venerable institution which has preceded it and which they now seek to co-opt. They simply assume an air of superiority and expect others to follow them. It is, as I mentioned earlier in this post, mediocre moralism from people who hold that there is no higher authority than those who sit in black robes. Unfortunately, it appears that the people will fulfill their vapid expectations.