Homosexuality and the PIB argument

Ethics

Volumn 115, Issue 3, 2005, Pages 501-534

  Corvino, John ^a  

^a NONE

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EID: 20444452158     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/428456     Document Type: Article

References (85)

1. Interview of U.S. Senator Rick Sentorum by the Associated Press, taped April 7, 2003, published April 22, 2003, http://www.sfgate.com/cgi-bin/article. cgi?File = news/archive/2003/04/22/national17-37EDT0668.dtl.
2. Justice Byron White used the analogy in the 1986 U.S. Supreme Court Decision Bowers v. Hardwick (478 U.S. 186 [1986]), and Justice Scalia used it in his dissent in the 2003 Lawrence v. Texas (539 U.S. 02-102 [2003]).
3. See also Charles Krauthammer, "When John and Jim Say 'I Do,'" Time, July 22, 1996;
4. William Bennett, "Leave Marriage Alone," Newsweek, June 3, 1996;
5. Hadley Arkes, The Role of Nature," from the hearing of the House Judiciary Committee, May 15, 1996;
6. all three are reprinted in Same-Sex Marriage: Pro and Con: A Reader, ed. Andrew Sullivan, 282-84, 274-75, and 276-77, respectively (New York: Vintage, 1997). All further citations to the latter three articles will be to the reprinted versions. See also the new natural lawyers information cited in n. 27 below.
7. For a helpful discussion of this issue, see William N. Eskridge Jr., The Case for Same-Sex Marriage (New York: Free Press, 1996), esp. chap. 5.
8. For a detailed development of this claim, see Eugene Volokh, "The Mechanisms of the Slippery Slope," Harvard Law Review 116 (2003): 1077-1114.
9. Arkes, "The Role of Nature," 277;
10. Krauthammer ("When John and Jim Say 'I Do,'" 284) makes a similar point.
11. Andrew Sullivan, "Three's a Crowd," New Republic, June 17, 1996
12. reprinted in Sullivan, Same-Sex Marriage, 278-81, 279.
13. Sullivan himself has written against the alleged success of reparative therapy. See Andrew Sullivan, "They've Changed, So They Say," New York Times, July 26, 1998.
14. For example, at a June 1997 conference at Georgetown University, "Homosexuality and American Public Life," conservative columnist Maggie Gallagher urged her audience to stop thinking of homosexuality as an inevitable, key feature of an indi vidual's personality. Drawing, ironically, on the work of queer theorists, Gallagher proposed instead that homosexuality is at cultural construction - one that ought to be challenged. One might respond to Gallagher that the fact that something is culturally constructed does not make it unimportant: religion is culturally constructed, yet most traditionalists would consider it a "profound element of human identity." But it is certainly legitimate to question whether we ought to regard a trait as important just because most people with the trait consider it so. (Some papers from the Georgetown conference [although not Gallagher's] were collected in Christopher Wolfe, ed., Homosexuality and American Public Life [Dallas: Spence, 1999]).
15. I grant that a small percentage of homosexual people may be able to have fulfilling relationships with members of the "opposite" sex, but perhaps such persons are better categorized as "bisexuals."
16. This point has been suggested by Jonathan Rauch, whose position I shall take up shortly.
17. Jonathan Rauch, "Marrying Somebody," reprinted in Sullivan, Same-Sex Marriage, 285-88, 286.
18. I b i d.
19. The labels "we really exist" and "equal options" are both taken from personal correspondence I've had with Sullivan and Rauch.
20. Let me here acknowledge my debt to both of them for their work on the PIB argument.
21. Sullivan, "Three's a Crowd," 280.
22. See James Donovan, "Rock-Salting the Slippery Slope: Why Same-Sex Marriage Is Not a Commitment to Polygamous Marriage," Northern Kentucky Law Review 29 (2002): 521-90, esp. 548-49.
23. Jonathan Rauch, "Who Needs Marriage?" in Beyond Queer. Challenging Gay Left Orthodoxy, ed. Bruce Bawer (New York: Free Press, 1996)
24. as revised and reprinted in Same Sex: Debating the Ethics, Science, and Culture of Homosexuality, ed. John Corvino, 304-16 (Lanham, MD: Rowman & Litttefield, 1997), 306.
25. For an illuminating debate about whether pleasure constitutes a reason for action, see Stephen Macedo, "Homosexuality and the Conservative Mind," Georgetown Law Journal 84 (1995): 261-300, and, more specifically, Macedo's "Reply to Critics" in the same issue, 329-37.
26. It is true that some theorists reject the notion that heterosexual marriage is normative for everyone, but my argument does not depend on this claim. It merely depends upon the recognition that some important goods are realized by (nondeliberately) nonprocreative heterosexual relationships. And this point is conceded by every known proponent of the PIB argument (although, I explain in the next section, those proponents often disagree with gay-rights advocates about what the relevant goods are).
27. Donovan, "Rock-Salting the Slippery Slope," 548.
28. I am indebted to Bruce Russell for pointing this out to me.
29. To say that they are nonstarters is not to say that they are false; indeed, both conditionals are probably true.
30. David Bradshaw, "A Reply to Corvino," in Corvino, Same Sex, 17-30.
31. See Hadley Arkes, "Questions of Principle, Not Predictions: A Reply to Macedo," Georgetown Law Journal 84 (1995): 321-27.
32. John M. Finnis, "Law, Morality, and 'Sexual Orientation,'" in Corvino, Same Sex, 34.
33. Finnis might allow oral or anal sex by heterosexual partners as foreplay to marital intercourse.
34. For fuller statements of the position, see John M. Finnis, "Law, Morality, and 'Sexual Orientation,'" Notre Dame Journal of Law, Ethics, and Public Policy 9 (1995): 11-39
35. "The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations,'' American Journal of Jurisprudence 42 (1997): 97-134;
36. Robert P. George and Gerard V. Bradley, "Marriage and the Liberal Imagination," Georgetown Law Journal 84 (1995): 301-20;
37. Patrick Lee and Robert P. George, "What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union," American Journal of Jurisprudence 42 (1997): 135-57. For criticism of the position
38. see Macedo, "Homosexuality and the Conservative Mind," and "Reply to Critics";
39. Andrew Koppelman, The Gay Rights Question in Contemporary American Law (Chicago: University of Chicago Press, 2002), 79-93;
40. Gareth Moore, "Natural Sex: Germain Grisez, Sex, and Natural Law," in The Revival of Natural Law: Philosophical, Theological, and Ethical Responses to the Finnis-Grisez School, ed. Nigel Biggar and Rufus Black, 223-41 (Burlington, VT: Ashgate, 2001);
41. Paul J. Weithman, "Natural Law, Morality, and Sexual Complementarity," in Sex, Preference, and Family: Essays on Law and Nature, ed. David M. Estlund and Martha C. Nussbaum, 227-46 (New York: Oxford University Press, 1997);
42. and Michael J. Perry, "The Morality of Homosexual Conduct A Response to John Finnis," Notre Dame Journal of Law, Ethics, and Public Polity 9 (1995): 41-74.
43. Koppelman, The Gay Rights Question m Contemporary American Law, 80.
44. Lee and George, "What Sex Can Be," 151.
45. I b i d.
46. Koppelman (The Gay Rights Question in Contemporary American Law, 87-88) makes this point forcefully: "A sterile person's genitals are no more suitable for generation than an unloaded gun is suitable for shooting. . . . Contingencies of deception and fright aside, all objects that are not loaded guns are morally equivalent in this context it is not more wrong, and certainly not closer to homicide, to point a gun known to be unloaded at someone and pull the trigger than it is to point one's finger and say 'bangl' And if the two acts have the same moral character in this context, why is the same not equally true of, on the one hand, vaginal intercourse between a heterosexual couple who know they cannot reproduce, and on the other, oral or anal sex between any couple? Just as, in the case of the gun, neither act is more homicidal than the other, so in the sexual cases, neither act is more reproductive than the other."
47. Moore, "Natural Sex," 224-26.
48. One might be tempted to compare this damage to that of counterfeiting: think, e.g., of how ersatz master's degrees or doctorates which can be readily purchased on the Internet undermine the value of real degrees. But while attacks on the marital good may have bad consequences (e.g., rising divorce rates), Finnis's main concern is not consequentialist.
49. Finnis, "The Good of Marriage," 123.
50. Ibid., 123-24. I have substituted "someone" for "even a person of exclusively and irreversibly homosexual inclination," since the sexual orientation of the person is irrelevant to Finnis's point and the longer construction serves only to distract from that point.
51. Finnis, "Law, Morality," 28-29.
52. Moore, "Natural Sex," 231-32.
53. See, e.g., Perry, "The Morality of Homosexual Conduct," 56.
54. As Perry writes, "Interpersonal sexual conduct, whether heterosexual or homosexual, can be a way of affirming and serving both the sexual and the emotional wellbeing of one's lover; as such, sexual conduct can both express, in a bodily (embodied) way, one's love for one's lover; indeed, at its best such conduct can be a generative matrix of the emotional strength one needs to live well - to live a truly, fully human life - and therefore to attend to one's most challenging responsibilities, such as those that attend being a parent. Sexual conduct can be all this (and more) even if it is not meant to be - indeed, even if it is meant not to be - procreative" (Perry, "The Morality of Homosexual Conduct," 51-52).
55. Perry, "The Morality of Homosexual Conduct," n. 32.
56. Lee and George, "What Sex Can Be," 155. The new natural lawyers' use of the term "gratification" may leave them vulnerable to an argument similar to Bishop Butler's famous a priori argument against psychological egoism. Butler observed that the achievement of "desire-satisfaction" presupposes the existence of a desire for something other than "desire-satisfection"; thus, we must at least sometimes desire things other than desire-satisfaction-otherwise, we would face an infinite regress of desires to be satisfied (Joseph Butler, Fifteen Sermons Preached at the Rolls Chapel, sermon 11 [esp. par. 6], reprinted in Joseph Butler. Five Sermons, ed. Stephen L. Darwall [Indianapolis: Hackett, 1983], 46-57). In a similar way, "gratification" presupposes some appetite to be "gratified," and that appetite must have some object beyond "gratification." This point fits well with our common-sense understanding of most sexual desire: Jack desires Jill, and perhaps desires to perform certain actions with Jill, and his "gratification" comes from satisfying those desires. If so, then Jack does not - indeed, cannot - desire gratification for its own sake. Perhaps when Lee and George wrote "gratification'' they should have written "orgasm, or genital arousal, or the subjective experience thereof." But then the claim would be even more obviously false: Jack doesn't (merely) desire orgasms; Jack desires Jill (On this point.
57. see Roger Scruton, Sexual Desire: A Moral Philosophy of the Erotic [New York: Free Press, 1966], 21-22.)
58. On this point, see Macedo, "Reply to Critics," 330 ff.
59. Koppelman, The Gay Rights Question in Contemporary American Law, 85.
60. Moore ("Natural Sex," 236) makes this point. Finnis could respond by noting that some subjective experiences are more desirable than others: most people would rather imagine sex with an attractive partner than with an unattractive one. But this response still fails to justify the radical revision of common sense involved in his assertion that any partners who do not seek the marital good (e.g., homosexual partners, partners who use contraception) are merely seeking subjective experiences rather than genuine interpersonal intimacy.
61. Ironically, Finnis seems to forget his own advice about the importance of empirical observation in moral analysis: "The disciplined acquisition of accurate knowledge about human affairs . . . is an important help to the reflective and critical theorist in his effort to convert his own (and his culture's) practical 'prejudices' into truly reasonable judgments about what is good and practically reasonable." See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980), 17. I am indebted to James Donovan for pointing out this inconsistency in Finnis.
62. See Donovan, "Rock-Salting the Slippery Slope," n. 143.
63. That it is so divorced from the self-understanding of reasonable sexually active people does not necessarily render it false; people could be systematically self-deceived. For a plausible development of this point, see Paul Weithman, "A Propos of Professor Perry. A Plea for Philosophy in Sexual Ethics," Notre Dame Journal of Law, Ethics, and Public Policy 9 (1995): 75-92. However, the problem does increase Finnis's burden of proof, which he already seems far from meeting.
64. And see Perry's response to Weithman on this point in Perry, "The Morality of Homosexual Conduct," n. 46.
65. This is reminiscent of Dostoevsky's claim, "If God is dead, everything is permitted."
66. Indeed, perhaps this is the point of Rauch's equal-options argument: gays can seek marriage without seeking sexual anarchy. The question still remains, however, whether (regardless of what they in fact seek), gay-rights advocates can maintain a principled objection to PIB after embracing homosexuality. I address this question in the fourth and final sections.
67. Finnis, "The Good of Marriage," 123.
68. See Arkes, "Questions of Principle."
69. Lee and George, "What Sex Can Be," 156.
70. See Martha C. Nussbaum and Kenneth J. Dover, app. 4 to Martha C. Nussbaum, "Platonic Love and Colorado Law," Virginia Law Review 80 (1994): 1515-1651, 1651, "It is, however, an extraordinary error to suppose that someone who regards x as sometimes or often a good must, if consistent, regard it as good in all circumstances."
71. In correspondence, Robert George has informed me that he and Patrick Lee will be addressing this issue in a forthcoming book on dualism and morality. Having not seen that book, I remain unconvinced that mere attention to the "marital good" will rule out all forms of PIB - unless the concept is stretched into an even more problematic form.
72. Notice, e.g., that my comments on polygamy contradict those of fellow gay-rights advocate Jonathan Rauch.
73. James Donovan has argued that polygamy is not as inherently sexist as widely believed.
74. See Donovan, "Rock-Salting the Slippery Slope," sec. IV.B.
75. For a discussion of egalitarian polyamorous relationships, see Elizabeth F. Emens, "Monogamy's Law; Compulsory Monogamy and Polyamorous Existence," New York University Review of Law Social Change 29 (2004): 277-376.
76. Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (New York: Holt, 2004), 129.
77. Ibid., 130.
78. Rauch's example of Tommy and the paint cans suggests an illustration of the problem. Suppose that, instead of painting, Tommy decides to borrow a book from the library. Obviously, not every student could borrow that same book (assuming that there is only one copy but multiple students). Does it follow that it is unjust for Tommy to borrow the book? I am grateful to Christine Korsgaard for her helpful comments on this section.
79. The classic philosophical article on the incest taboo remains Jerome Neu's "What Is Wrong with Incest?" Inquiry 19 (1976): 27-39.
80. Laurie Shrage, "Should Feminists Oppose Prostitution?'' Ethics 99 (1989)
81. as reprinted in The Philosophy of Sex, 3rd ed., ed. Alan Soble, 323-38 (Lanham, MD: Rowman & Littlefield, 1997), 326-27.
82. This "playing it safe" argument is a consequentialist one, and there are at least two different ways of understanding it On one reading, the argument claims that consensual adult incest is wrong because it is likely to lead to nonconsensual (especially adult-child) incest, or more broadly, to harm to the family. On another reading, the argument claims not that consensual adult incest is wrong but that the Mure to prohibit it is wrong. The idea behind this second reading is that, while some cases of consensual adult incest may not have bad consequences, any policy that fails to prohibit incest across the board would have bad consequences. In the remarks that follow, I am assuming the former reading.
83. Koppelman, The Gay Rights Question in Contemporary American Law, 184 n. 93.
84. To my ear, the move from "no objection in principle to PIB" to "no principled objection to PIB" is a non sequitur. The former suggests that there are no true general principles entailing that PIB is wrong in itself; while the latter suggests something stronger, namely, that there are no true general principles that we could use to show that (most or all) instances of PIB are wrong. That is, the latter rules out the possibility of a principled extrinsic objection to PIB (e.g., an objection to PIB on the grounds of its being generally harmful). Most gay-rights advocates (including Koppelman) have precisely that sort of objection to PIB.
85. E.J. Graff, What Is Marriage For? The Strange Social History of Our Most Intimate Institution (Boston: Beacon, 1999), 251-52.