10/9/2014 A deeply amoral defence of same-sex marriage

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A deeply amoral defence of same-sex marriage
BY MICHAEL COOK
Last week the US Seventh Circuit Court of Appeals unanimously upheld a district-court ruling that had struck
down same-sex marriage bans in Indiana and Wisconsin. Judge Richard Posner wrote the decision, a brilliant
piece of rhetoric which was studded with sparkling one-liners and dripping with sarcasm. Hero Federal Appeals
Judge Burns Down the Case Against Gay Marriage was the headline in Gawker, a widely-read website. A
masterpiece of wit and logic, was the verdict of Slates columnist.
Since the 75-year-old Posner is the most-cited legal scholar of the 20th Century and one of Americas leading
public intellectuals, his views are bound to be influential as same-sex marriage heads for the Supreme Court.
But stripped of their sequinned garments Posners views are not as muscle-bound as they first appear.
His strength is identifying absurd inconsistencies in arguments and using them to pry open the door for new
interpretations. For instance, he points out that Indiana bans marriages of first cousins until they are well past
the age of procreation at 65. Elderly first cousins are permitted to marry because they cant produce children;
homosexuals are forbidden to marry because they cant produce children, he writes.
Gotcha!
There are many entertaining Gotcha moments in his decision, too many, in fact, for they distract readers from
his weakness on the fundamentals. His case rests on three legs, all heavily reliant on social science scholarship.
First, he argues that homosexual orientation is genetic, an immutable and innate characteristic rather than a
choice. To support this he cites a 2008 brochure from the American Psychological Association not exactly the
summit of genetic scholarship, although admittedly, it is the APAs official view. However, no genetic cause has
yet been identified; homosexualitys origin is still an open question.
Besides, if homosexuality is genetic, it should have disappeared according to evolutionary theory, as
homosexuals do not produce offspring. Posner acknowledges that this is a problem, but says that the kin
selection hypothesis shows that homosexuality is compatible with evolutionary theory. What he doesnt say is
that the kin selection hypothesis is so controversial that it has been criticized by the Harvard evolutionary
biologist who popularized it in the first place, Edward O. Wilson. Whether this is true or false is a matter for the
scientists to work out. But the genetic origin of homosexuality is unsettled and contestable. It is hardly a firm
plank on which to base a revolution in US marriage law.
Second, he argues that same-sex marriage does no harm to the institution of marriage or to society at large.
This is a claim which is impossible to prove in less than two generations. The precedents are not promising. The
last revolution in marriage, no fault divorce, was described as a blessing in the 1960s. But after a half-century
experiment, it has led to huge changes in family structure, legions of single mothers, violence against spouses,
child welfare, a declining marriage rate and so on.
Posner seems quite impressed by a recent study which analysed whether marriage rates fell after Massachusetts
permitted same-sex marriage. Allowing same-sex marriage has no effect on the heterosexual marriage rate,
he concludes. So what? An snapshot of Massachusetts marriages from 2004 to 2010 says almost nothing about
damage to the institution.
Third, Posner says that the welfare of children should be front and centre of arguments about marriage. Since
marriage is the best place to raise children, he argues, it is discriminatory to deny homosexual couples the right
to raise their children within the framework of marriage.
But he only considers the material benefits of a hefty household income. The real question is whether a
marriage with a mother and a father is the best place to raise children. Posner ignores almost completely the
psychological effects on children of growing up in a heterosexual marriage, focused as he is on the rights of
adults.
How could such a brilliant scholar offer such conventional arguments about social morality based on such weak
evidence? The answer is that Posner does not believe in morality.
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10/9/2014 A deeply amoral defence of same-sex marriage
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I am not exaggerating. This is a plain statement of fact.
In 1997 Posner gave the Oliver Wendell Holmes Lectures at Harvard Law School, an honour given to
outstanding legal scholars. The Problematics of Moral and Legal Theory is an amazing document in which
Posner defends his view of the relationship between morality and law. He calls himself a moral subjectivist,
arguing that an individual acts immorally only when he acts contrary to whatever morality he has adopted for
himself. I am sympathetic to this position.
The consequence of this stand lead Posner into some eyebrow-raising assertions. Here are some of them.
It is impossible even to say that a practice like female genital mutilation is wrong, although it may be abhorrent
in our society.
Defenders of the practice claim that it is indispensable to maintaining the integrity of the
family in those communities. The claim is arguable, though I do not know whether it is
correct. If it is correct, the moral critic is disarmed, for there is no lever for exalting
individual choice or sexual pleasure over family values.
There are no actions which are always everywhere wrong, even infanticide:
A person who murders an infant is acting immorally in our society; a person who sincerely
claimed, with or without supporting arguments, that it is right to kill infants would be
asserting a private moral position. I might consider him a lunatic, a monster, or a fool, as
well as a violator of the prevailing moral code. But I would hesitate to call him immoral.
And amazingly even genocide can only be condemned because it runs across the laws of evolution.
One reason for the widespread condemnation of the Nazi and Cambodian genocides is that
we can see in retrospect that they were not adaptive to any plausible or widely accepted
need of the societies in question.
And the Nazis cannot be condemned in any objective way. In the light of the moral standards of the countries
which won World War II their actions were appalling crimes. But these were just the feelings of the victors.
It was right to try the Nazi leaders rather than to shoot them out of hand in a paroxysm of
disgust. But it was politically right it was not right because a trial could produce proof that
the Nazis really were immoralists; they were, but according to our lights, not theirs
Had Hitler or Stalin succeeded in their projects, our moral beliefs would probably be
different (we would go around saying things like You can't make an omelette without
breaking eggs); and they failed not because the projects were immoral, but because the
projects were unsound.
And democracy itself is not sacrosanct. Why shouldnt an elite govern the proletariat? Only because the
proletariat has the power to resist. But an autocracy would not be wrong.
There is nothing in theory to refute a Nietzschean project of maximizing the power of an
elite; it just is not in the cards in an age in which the growth and diffusion of wealth have
made ordinary people self-confident and assertive.
Slate praised Posners opinion as deeply moral. This is a mistake. His slap-down of arguments in support of
traditional marriage is deeply amoral. It is typical of Posners Nietschean scepticism of the possibility of any
objective ethical standards. Morality is about identifying what actions are consistent with human flourishing. If
Posner professes ignorance on this score, how can he possibly be a guide for what will make children, families,
and society flourish?
In 1974 he floated the idea of buying and selling babies in a now-famous article. He contended that a market in
babies would solve the problem of a shortage of babies for adoption caused by the legalisation of abortion. A
mind for which baby trafficking confers substantial public benefits was never going to see problems with placing
babies in the care of married same-sex partners.
A profile of Posner in the academic magazine Lingua Franca sums him up well: a gifted but wayward mind,
given to reductive, simple minded analysis of the variegated human experience, seduced by a cynical narrative
of power and survival; a dogmatic, heartless, calculating machine in pursuit of cold-blooded efficiency.
What harm can same-sex marriage possibly do? All attention has been focused on the harm to traditional
marriage as an institution. More should be focused on the harm to our most deeply felt and dearly purchased
notions of morality, democracy and law. If, thanks to Richard Posners corrosive reasoning, same-sex marriage
is legalised, they are at risk as well.
Michael Cook is editor of MercatorNet.
MORE ON THESE TOPICS | same-sex marriage, same-sex parenting, USA
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