Saturday, February 26, 2011


I confess that the title to this post was meant to be blunt, but please don’t think it was intended to be rude. Nothing could be further from the truth. It is an unfortunate tendency in our culture today for people to be drawn to the sensational and controversial. So I avoided the temptation to go with a more philosophical title in hopes that by being straightforward and blunt I would draw more people in. If you are reading this, hopefully it means I succeeded in that small task. I encourage you to keep reading, at which point it is my hope that you will see I hold those who disagree with me in the greatest respect and do my best to sympathize with the situation in which you find yourselves (while never claiming to fully understand because I confess to not being subject to same gender temptations myself).

This topic is of particular importance to me personally. The denomination with which I am affiliated (PCUSA) is currently being torn apart by debates over same sex marriage. Maryland, the State in which Ten Minas Ministries is based, is currently holding debates in their legislature about whether to permit same sex marriage (the bill has already passed the Senate, and is likely headed to a referendum before the voters). But most importantly, I have had many dear friends throughout my life (including some currently) who are in same sex relationships and who firmly believe in their right to be married. I do not approach this topic lightly because I know the potential hurt that my position may cause them.

Please do not misunderstand me. I really do not hold myself out as any particular expert on the subject, nor do I think my own opinion is so drastically important that everyone should stop whatever he or she is doing to listen. No, I am just one voice in the cacophony and I am perfectly comfortable with that. But America’s democracy is built on the premise that each person has the right to contribute to the cacophonous marketplace, so I am just going to take what small forum I have available to me in order to make my contribution.

I. The Proper Tone of the Conversation

For starters, you should know the tone I am hoping this post will take. It is not my intention to launch into any ad hominem attacks. I have seen both sides of the debate approach it from that type of an angle and I firmly believe that those voices do nothing but inhibit the free marketplace; they do not make any meaningful contributions to it. I wrote a post a few months ago about a protester carrying a poster with two hangman’s nooses on it saying “God’s solution to gay marriage.” This morning I read about Delegate Luiz Simmons of Montgomery County, Maryland poking fun at his Republican colleagues by saying he’d reviewed the witness list for the panel hearing and “God has not signed up either for or against” the proposed legislation. Both sides are guilty of “debating” the issue without actually saying anything of substance. My goal is to do my best to avoid any such attacks. If I fail in your eyes, I can only ask your forgiveness in advance. I will be the first to admit that I am far from perfect.

I also want you to understand what kind of discussion this will be. I am a Christian. That much is obvious. I am the President of a Christian apologetics ministry. I am also well aware that for that reason alone many people will disregard my opinion outright. I can only beg your indulgence and ask you to stick with me for a while. Hopefully I can convince you that the mere fact that I am a Christian should not per se discredit my position. I hope that you will give me a fair hearing, just as I will do my best to give you a fair hearing if you choose to voice your concerns in a comment (I confess to being a bit nervous about where this will lead, but part of the reason I am writing this as a blog post rather than simply an article is to allow those who agree or disagree with me to add their voice to this small corner of society’s cacophony as well).

As a Christian, I am prepared to defend the position against same sex marriage from a purely scriptural perspective. In fact, I have done so. If anyone is interested in hearing my thoughts in that regard, I invite you to listen to two podcasts on the TMM website titled, “What Does the Bible Say About Homosexual Marriage?” and “What Does the Bible Say About Homosexual Behavior?” But that is not the approach I will be taking here. After all, this post is not strictly addressed to Christians, but to society as a whole. The apostle Paul told the church in Corinth, “What business is it of mine to judge those outside the church?” (1 Corinthians 5:12). Paul was not saying that we should not speak up for what we believe to be right, but rather making a rather obvious observation. Why should those outside the church care what the scriptures say on a topic if they do not accept the Bible as authoritative in the first place? I fully appreciate that many people reading this post may think the Bible is nothing more than myth and fantasy. That is a discussion we can have on another day. But for the purposes of the defense I will make of my position, I do not expect you to give one ounce of credence to the Bible.

Of course, I also must be completely honest with you. I am a Christian, and I do accept the authority of scripture. Therefore, a complete answer of “Why I am opposed to same sex marriage” would have to include as one of its grounds that it is forbidden by God. Again, I confess to my biases and will not shy away from them. But if God really is the creator of the universe, and if the Bible really is His word, then shouldn’t we expect that there will be some relation between the two? In other words, if I believe same sex marriage is wrong based upon scripture (God’s special revelation), then shouldn’t the natural world (God’s general revelation) support this position as well? I am not saying that all the claims of the Bible should be provable from nature alone, but at a minimum we would not expect God’s two revelations to contradict each other. In reality, I believe the non-scriptural case weighs against same sex unions, and I will now turn to explaining why.

II. Sex and Marriage

The first step in understanding my position is to overcome our social taboos. Nobody seems to want to talk about sex in public settings. Walk into any debate on this subject in a lecture hall, legislative committee, or elsewhere, and you will hear people talking about love, commitment, God, family values and children, but hardly ever sexual intercourse. I apologize in advance if it makes you uncomfortable to hear so frank a discussion about sexual relations, but I assure you that it is necessary.

I am speaking purely from a secular perspective about marriage. After all, as I said before I am not presenting a scriptural defense (but if I was then the evidence is overwhelming that a Christian definition of marriage is only between a man and a woman). But what about civil marriage? Should a court clerk, judge or justice of the peace be allowed to perform a same sex union? Assuming that the separation of church and state prevents any religious considerations from entering the equation (I do not concede this was the original intention of the Constitution, but that is neither here nor there for the purposes of my point), then the question really becomes one of morality. After all, that is what our laws are all about. They legislate morality. I will come back to this point shortly, but for now I want to make sure you understand that there is an inseparable link, even on a civil level, between marriage and sexual relations.

Take the Commonwealth of Virginia as an example. Are you aware that a civil marriage can be annulled even after the ceremony if sexual intercourse has not yet taken place? The withholding of intercourse is also considered to be grounds for divorce. Even on a purely secular level, marriage includes in its definition the official government sanction of sexual relations. When the government permits two people to marry, it is granting its official blessing for the two of them to engage in sex. That is the point at which I address my question. Is it morally right for our government to condone sexual relations between two people of the same gender? If so, then I see no secular reason to prohibit these marriages. If not, then I do not see how they can be condoned.

III. The Burden of Proof

Everyone is biased. Let me say that again so that it sinks in, everyone is biased. I bring a bias to every issue. So do you. But there are “biases” and then there are “Biases.” The lowercase kinds of biases are not necessarily a bad thing if the biases themselves are warranted. They come from our worldview. If your worldview is justifiable, then the biases it brings will be as well. The uppercase varieties are the ones that make us examine an issue with our emotions instead of our brains. I admit to my bias. I am a lawyer. I have been a lawyer for almost 13 years, which means I have a certain way of looking at things. It is not necessarily a good or a bad way. It is just a typical “lawyerly” way.

When I begin looking at a problem, the first question I ask myself is, “Which side has the burden of proof?” Pretend you are sitting on a jury in a case where the Plaintiff is claiming the Defendant punched him in the face. At the end of the evidence you are called upon to make a decision about who wins and who loses. Unfortunately, after listening to all the evidence, you come to the honest opinion that it is evenly split. The evidence on one side is just as strong as that on the other, and you really do not know what happened. You don’t have the option of declaring a tie. Somebody has to win. How do you decide? The legal system makes that decision for you by giving one side the “burden of proof.” That means that one party has the job to convince you, by whatever slim margin, that he or she is right. If they don’t convince you, either because the evidence for the other party is stronger or because it is evenly split, the other side wins. In a civil case the Plaintiff has this burden. The tiebreaker goes to the Defendant.

Because this is my background, I tend to use the same approach when examining social issues. As a voter, I will soon be asked whether to accept same sex marriage in Maryland. The first step in my mind then, before I look at a single piece of evidence, is to decide who has the burden of proof. You may feel differently, but for biological reasons alone I feel this burden must be assigned to those in favor of same sex unions.

One thing that I believe must be conceded by people on both sides of this issue is that when it comes to intercourse there is a certain biological compatibility between opposite sex couples that is not present with members of the same sex. There are parts of the male and female bodies that are designed (whether you believe that design is the result of a divine being, natural selection, or anything else) to go together (forgive me as I try to address the necessary issues without becoming too crass in the effort). Our bodies are such that heterosexual intercourse elicits certain physiological reactions that at best must be artificially created in certain same sex activities. Furthermore, heterosexual relations appear to find further support in the simple fact that they serve a biological purpose that homosexual relations do not. Even if you deny the existence of a supreme being, even natural selection has clearly created beings that rely upon sexual intercourse for procreation and survival of the species.

Before we proceed any further, it is important for you to understand what I am (and am not) relying upon these biological factors to show. I am not using them to make an affirmative case against the morality of same sex intercourse (which as I said before is the deciding factor in whether to condone same sex civil marriages). Rather, I am looking to decide where to assign the burden of proof. In doing so I search for common ground. On what can both sides agree? I believe that any fair observer simply must concede these facts to be true. If we cannot even agree on this much, then I see no point in going further. To deny these very basic facts about the human anatomy is to guarantee that you will never be open to any argument.

The only purpose for which I use these facts is to decide which side has the burden of proof. Because these agreed upon facts seem to favor heterosexual relations, I assign that burden to those advocating a form of relations that runs against the biological stream, so to speak. Please also understand that this does not mean advocates for same sex marriage cannot meet that burden. Plaintiffs win cases in court every day even though they have this same burden. It is a tiebreaker, nothing more. If same sex proponents can tip the scales ever so slightly in their favor they would still win the day.

IV. Is Morality Objective?

I have made several comments thus far about “morality.” Specifically, I have claimed that whether our government should permit same sex intercourse via marriage is a moral question. But doesn’t this beg an even larger question: What is morality? Some people believe there are objective moral laws that apply equally to everyone regardless of what we may personally believe. The Holocaust was objectively wrong. Its rightness or wrongness is not open for debate, not a matter of personal opinion. Other people firmly believe that morality is purely subjective. There are no absolute moral rules. Societies decide for themselves what is moral and what is not with no higher authority than the will of the people.

The answer to this question would take far more space than is practical, but I also do not believe we need to answer it for our current purposes. Remember what we are talking about. This conversation is about whether the civil law should permit same sex unions. In order to have a civil law in the first place, there are certain assumptions that we simply must accept, one of which is objective morality.

The civil law is by definition an objective standard that applies to everyone. Murder is not legal for one person but illegal for another (leaving fairness in the application of our laws aside and speaking purely from a philosophy of laws perspective). On what basis do we formulate these laws? Clearly at least certain laws are intended to prescribe morality. Why is rape illegal? Because it is a moral violation of the victim in the highest degree. We do not ban rape on purely pragmatic grounds. Regardless of the consequences, rape is a violation of someone’s personal rights. On this point I think people on both sides of the aisle of this debate should agree. People have inalienable rights. The Declaration of Independence says so and I fully embrace that concept. Of course, these rights are not absolute. We have a right to freedom, but it is not freedom to do anything. Our freedom does not extend to that class of activities that the civil law has declared to be immoral.

So in formulating laws we look to a standard by which to judge right and wrong. It makes no sense to say that the standard to which we look is subjective. That would be equivalent to saying, “morality is purely subjective but we are going to enforce it objectively.” That is a contradictory statement. Besides, our legal system does not look like one that accepts subjective morality. If it did, we would expect to see laws that say the same action would be illegal for those people who accept the immorality (or illegality) of their actions but not for those who do not. Imagine trying to get a conviction in that system of justice! The fact that we pass laws with moral principles that apply equally to all demonstrates that our justice system is based upon the assumption that morality applies equally to all. Therefore, regardless of what you may personally believe about morality, if we are confining our discussion to the question of the civil law, we must work within the philosophical framework of that system, which means we must (at least for the sake of discussion) accept that morality is objective.

V. The Sacredness of Gender

So far I have assigned the burden of proof to those in favor of same sex marriage and demonstrated that if we are talking about a legal course of action, we cannot escape the dilemma by saying, “What is right for you may not be right for me, so why can’t you just let me live my life in peace?” That statement assumes a subjective morality which the legal system simply cannot accept and still expect to function. Whether we like it or not, we must assume that there is a “right” answer and a “wrong” answer to this question and do our best to figure out which is which.

So that I cannot be accused of simply putting forth a defensive effort, allow me to place some evidence on the side of the scale opposed to same sex unions. Granted, based on what I said before I believe those opposed to same sex marriage have the tiebreaker, but this does not mean they cannot offer their own evidence. Please permit me to articulate one argument.

Many people favoring same sex unions like to draw a parallel between their cause and the civil rights movement. They point out that African Americans were being denied basic rights and claim that the same is being done to them today. At first blush it is admittedly an attractive argument. I certainly am not in favor of treating people unfairly? Who would be?

But there are a few distinctions that must be taken into account, and in the end I believe the civil rights movement actually counts as evidence against same sex unions. First, on what basis are people being denied privileges? In the civil rights movement it was because of the color of their skin, clearly an irrelevant criteria. In the current debate, as I have framed it (which as far as I can tell is the only fair secular way for opponents of same sex marriage to frame the discussion) it is because of something people do; i.e., an activity in which they engage (same sex intercourse). While it is always improper to deny people privileges based upon whom they are (i.e., the color of their skin) it is not so obviously wrong to deny privileges to people based upon what they do. I will get to the alleged biological disposition for homosexual attraction shortly, but for my present purposes it is sufficient to point out that our entire legal system is about denying people life, liberty or property based upon something they did or promised to do. This does not answer the question for us, but it does point us back to our starting point that the real question we must ask ourselves is whether the activity of same sex intercourse is moral.

Here is the question I believe advocates for same sex unions must answer. The reason it is wrong to discriminate against someone because of race is because race is sacred (whether you wish to define that term by referring to a divine being or simply a non-divine moral right). We do not choose our race. It is part of who we are, and it is wrong to violate that. While proponents of same sex marriage often argue for a biological predisposition (more on this to come), it seems to me that they fail to acknowledge that people are also born with a certain physiological gender that should not be violated. Why is it that someone’s race is held sacred but physiological gender is de-sacralized? We are born into our gender in the same way as we are born into our race. If morality honors a person’s race then shouldn’t it also honor their gender? If there is moral value in race, then there is moral value in gender and any act in violation of that gender should be viewed with some level of suspicion.

Can gender be de-sacralized based upon the free choice of the individual? Perhaps. I am willing to concede that it is possible. But how would you react to an African-American insisting on using a separate bathroom because he does not think himself worthy to share a bathroom with Caucasians? Would you walk away believing that this is his right or would you try to convince him that his reasoning is faulty and he should not think of himself this way? I, for one, hold both race and gender to be sacred. While I will not prevent people from de-sacralizing either in themselves of their own free choice, I also cannot in good conscience celebrate the act of them doing so.

VI. What About Love?

At this point in time you are probably thinking of many arguments that far outweigh the weight I have just placed on my side of the scale. One leading argument is based upon love. After all, even if gender in general should not be violated, certainly the overpowering value of love far outweighs whatever value we assign to honoring gender.

This is the point on which I believe more confusion exists than any other, and it is largely the fault of those in the Christian church. Rather than acknowledging that same sex couples genuinely love each other, we deny that their feelings are real, as if we somehow became omnipotent and could see into their hearts and tell them what they are feeling. It always seems pointless to me when one person apologizes for what another person has done, but for what it is worth I apologize for this incredibly presumptuous reaction that has been advanced by many in the name of Christ. Since when is Christianity about denying love? Far from it! I will never deny the genuineness of the feelings felt by people in same sex relationships.

It is here, though, that I feel the English language fails us. Many terms in English have nuances of meaning. “Love” is one of those terms. Greek is a far better language to illustrate my point. Four different words for “love” in Greek are agape, eros, philia and storge. “Agape” refers to a deep, true, self-sacrificing love. “Eros” is sensual. “Philia” is a friendship type of love. “Storge” is a natural affection, like that of a parent for a child. I “love” many other men in my life. When we are talking about whether same sex intercourse is morally condoned, we are not speaking of agape, philia or storge love, but rather the eros variety. Yet when people say that this type of marriage should be permitted because the couple “loves” each other, in context they are generally referring to agape. The reason it is allegedly such a crime to deny marriage to these couples is because they share such a deep devotion to each other. But if the real question is whether intercourse should be allowed, this is missing the point. Granted, it is an easy mistake to make because our English language does not make these fine distinctions. We use the word “love” for each, so we can miss the fact that we are using “love” equivocally rather than univocally.

You do not need to be married to share agape love with someone and I would never dream of telling someone they do not truly feel that way for another person in their heart. But we need to avoid the temptation to become sidetracked. If the proponent is seeking to put weights on one side of the scale, evidence that does not address the issue at hand has no value in the balance. I grant that agape love has enormous value, and possibly could outweigh what I have placed on the other side of the scale if it was relevant. Unfortunately, comparing the value of agape, which is not denied by disallowing same sex marriage, to the value of the sacredness of gender is comparing apples and oranges.

Only a balance of gender and eros would be relevant. Eros though, at least in its physical expression, is not per se entitled to nearly the same value as agape. Eros has a history of having both beneficial and detrimental expressions. While eros can be beautiful, it can also have negative expression as when it is responsible for adultery or underage pregnancies. Agape is always good. Eros can be good or bad and therefore cannot per se be entitled to the same value. When placed on the scale in isolation, then, I do not believe eros can justify de-sacralizing gender.

VII. What About a Biological Predisposition?

This leads to another common argument, that people are born with a certain sexual disposition. It is a genetic, not a learned behavior. I confess to not having researched this issue as thoroughly as I could. Some people swear the evidence clearly shows a genetic connection whereas others feel equally strongly the other way.

The reason I have not looked into this question more deeply, though, is not because of laziness on my part. Rather it is because I do not see how the answer would make a difference either way.

We are examining whether certain actions are moral, not feelings. In other words, the key question is not whether it is moral to have feelings of attraction toward members of the same sex but rather whether it is moral to act on those feelings. What is morality if not a set of rules to tell us when we cannot do something we may genuinely feel a very strong desire to do? If we did not desire to do something then we would not need morality to tell us not to do it. We would not have any desire to do it in the first place.

Thus, even assuming people have a sincere biological attraction to members of the same sex, that does not bring us any closer to resolving the moral question of whether it is right to physically act on that attraction.

VIII. On What Basis Could Same Gender Sex Be Moral?

My point in the last two sections has simply been to illustrate that two of the arguments often raised in support of same sex marriage actually miss the point. Of course, that does not mean that it cannot be justified on other grounds. There are many competing objective moral theories (because the legal system must assume an objective ethic, we do not need to concern ourselves with subjective theories). Perhaps one of them could support same sex unions. In reality, though, I find it difficult to justify the practice under any objective moral theory.

Even though I personally hold to a form of divine command theory (which is a theory of objective ethics), I am excluding that as a possibility for what should seem obvious reasons. Most divine command theorists would likely claim that there is just such a command against same gender sexual relations.

A strong utilitarian argument could be made for same sex unions. After all, in Utilitarianism the “moral” is the act that produces the greatest happiness measured against the least suffering. The participants in same sex relations, acting on their feelings of eros, undoubtedly experience some degree of happiness. As long as these activities take place in private the rest of the world remains ignorant to their occurrence and therefore sustains no negative consequences. What is wrong with justifying same sex intercourse on utilitarian grounds?

Simply put, since when is happiness the sole determining factor of morality? If we really think about the consequences of a utilitarian ethic most people would likely be offended by it. For example, if a person ridicules a dear friend behind his or her back, the unsuspecting victim experiences no unhappiness over the incident whereas the perpetrator derives some level of happiness. If the total measure of happiness versus unhappiness were the sole measure of virtue, then this ridiculing would appear to be a virtuous act. The definition of “good,” however, appears to include concepts other than merely happiness, such as friendship and loyalty. Utilitarianism appears to have a backwards understanding of the role happiness plays. Happiness is not something that is good for its own sake. Instead, happiness is a response we have to other things that we recognize as goods, independently and in their own right. So perhaps the happiness versus unhappiness ratio does favor the private expression of same sex intercourse, but that does not make it moral.

What about a Kantian ethic? Does the categorical imperative favor same sex unions? The categorical imperative says to always act in such a way that your maxim could be taken as a universal law. Could we will that people universally be permitted to engage in same sex intercourse, even if privately expressed? Given the important biological purposes served by heterosexual intercourse to the survival of the species, I do not see how this could be willed as a universal rule.

Aristotle gives us another option. He claimed the moral action is found in the mean between two extremes. Between slovenliness and extreme vanity we find a healthy level of humility. The problem is that it is difficult to see how same sex intercourse could be viewed as any kind of a mean. If this is the mean, what are the extremes? Aristotle conceded that some things (he gave the example of suicide) are not subject to his golden mean analysis and are therefore wrong in themselves. Is same sex intercourse of this character? I do not pretend to know. But at best we must remain agnostic as to how to apply an Aristotelian ethic to the question at hand, and if the proponent of these unions has the burden of proof then an Aristotelian ethic cannot break the tie.

IX. What About Civil Unions?

So in the end I come to the conclusion that those favoring same sex intercourse have not met their burden of convincing me that such activities are moral. If those activities are not moral, then neither is same sex marriage that explicitly condones such behavior.

But what about civil unions? Is it possible to have a “middle ground” where these couples can enjoy some form of official recognition without condoning sex? Perhaps, but I am skeptical. I am lawyer so I am naturally suspicious of people’s motives. Why does someone want a law recognizing civil unions? Is it really because they believe we should create a new category of government recognition or is just a back door attempt at moving one step closer to full recognition of marriage?

But it is at least theoretically possible to create a civil union law that overcomes the objections I have raised in this post. I only question the need for it. Unmarried people can already enjoy many of the alleged benefits of civil unions. Unmarried people can share a joint bank account. Living wills and medical powers of attorney can grant the power to make medical decisions. It is true that unmarried couples do not get the same income tax advantages, but perhaps that should cause us to question why we give these tax advantages to married couples, not to expand them even further.

So I am open to a discussion about civil unions, but I confess to going into that discussion with some serious reservations.

X. Let He Who is Without Sin…

In the end, I remain unconvinced that same sex marriage, in all its implications, is moral. I do not agree with that lifestyle. That being said, I will not deny you the right to live that lifestyle if you choose, but I simply cannot celebrate or condone it. I also think many Christians forget that even though we believe homosexuality to be a sin, it is far from the only sin in the Bible. Yet for some reason we elevate this sin above all others, especially above those we have committed ourselves. We should address this question with respect, not hostility. I ask all Christians to reflect on sins they have committed in their life and ask how they would feel if someone addressed that sin in them in the same manner in which they address the issue of same sex marriage. Would you like being demonized? Then do not demonize your opponent. Do you appreciate being insulted and ridiculed? Then why should we treat others this way?

It was my sincere desire in writing this post that I would demonstrate the possibility of having an intelligent conversation about these issues without being rude or letting emotional outbursts take over. If in your mind I failed in this task, I offer my sincere apologies and ask simply that you not measure Christ by the mistakes made by this one far from perfect disciple of His.

Thank you for bearing with me through my long and rambling contribution to the cacophony. God bless.

Ken Coughlan


Nat G said...

I appreciate you putting so much effort and calm energy into this attempt at conversation. However, if this were a direct conversation, there would've been a few places where the person you were talking to would've said "wait a minute, what you just said isn't quite right, it's an error in fact or assumption, and you shouldn't be building off of it."

One such stopping point would've been where you painted marriage as the government condoning of sex, which would have been true at various places at various times, but is not true today in Maryland (or, for the most part, in the rest of the USA). Between the ruling in Lawrence v. Texas which protected private non-commercial activity between adults regardless of marital status, and the removal of spousal exceptions to the rape laws which took place during the last quarter of the 20th century, the only place where the law differentiates between martial and non-marital sex is in some jurisdictions where a married couple may be immune to statuatory rape laws.

Another point is where you suggest that people are tying the gay marriage issue to the general civil rights law rather than what they do specifically reference: the anti-miscegenation laws.... and those laws fail your analogy. They did not target one race versus another; they restricted both black and white alike, and in fact every time those laws stopped an interracial marriage, it was people of both races who were being denied rights. And one could argue that the choice to marry someone of a different color is just as much a choice, just as much an action as the choice to marry someone of the same sex. (And if you look at some of the old arguments - and you should, it can be interesting stuff, it's not all the frothing-at-the-mouth racism that is easily described today), you can find that the concept of "sacredness of race" is raised by those supporting those laws, who sought to prevent people being born with "muddled" race and thus bereft of its sacredness. (By the way, when you're trying to paint your argument as being secular in nature, "sacred" is a problematic descriptor.)

I don't have time to get at every problematic step in your argument, whether it be your conflation of the legal with the moral and the question of which drives which (driving on the left side of the road is only immoral because it is illegal and thus causes problems within the extant system; the folks in England are not all sinners) or your inappropriate extension of the concept of "burden of proof" - but you will have to improve your argument if you hope to win over those who do not already agree with you.

DagoodS said...

Ten Minas Ministries,

A few points:

1) Thanks for your time and effort putting this together.

2) As an American you have a right to both voice and hold your opinion. You are entitled to be against gay marriage because of religious beliefs, moral beliefs, or simply because you want to.

3) I would never attempt to change your mind; as you forthrightly indicate you find homosexuality immoral for religious beliefs, and it would take more than an esoteric discussion to change your mind on this sub-issue within the homosexual debate.

I agree with Nat G, there are a few areas where a pro-gay marriage position would point out disagreement.

4) Sex is only part of marriage. Marriage grants inheritance rights, children rights, property rights, medical rights and legal rights far beyond sex. Your annulment example is incomplete—one can also annual a marriage (even with sex) for mental disability and fraud (at least in Michigan.) In fact, there are certain situations where clever lawyers can frame an annulment for legal advantages.

5) Laws do not equate to objective or absolute morality. Especially in this area—they do not “apply to everyone.” Some states allow one to marry first cousins; others do not. There are difference in age requirements (and parental consent.) Indeed, in America, there are different legal requirements—the most obvious being some states allowing “common law marriage,” not to mention blood tests, waiting period, etc.

Further, laws change. As pointed out, once people of different races could not marry. You would not state that was an “objective morality” or “absolute morality.” Likewise laws regarding marriage can change as well.

6) The argument regarding discrimination being different because one is born “black” also fails. We also prohibit discrimination based upon religious belief and marital status—arguably traits one is not “born” with, but chooses. Whether one is born gay, or chooses to be gay, the analogy to the civil rights movement, while not 100% correlated, is still demonstrative.

I could add more, but in the end, I do not see how one could convince a person who believes homosexuality is a sin against a God that gay marriage is acceptable.

Nat G said...

"I could add more, but in the end, I do not see how one could convince a person who believes homosexuality is a sin against a God that gay marriage is acceptable."

Dagood - you're certainly close to right; it is very hard to to convince them that gay marriage is appropriate... but acceptable (or, perhaps, allowable) is a little easier. In Christian terms, God does not find sin appropriate - but he does choose to make it allowable. He could have made creatures incapable of sin. He could have built an unscalable fence around the tree of knowledge... but instead, he grants free will. So can one be made to see that the way to oppose homosexuality and gay marriage is not through law, but through cultural conviction. Goodness knows that I've known straight couples that should not have gotten married - I imagine the minister here has as well. And when given the polite opportunity to suggest that they may want to rethink marriage plans, I've let my thoughts be known... but I would never suggest that they not be legally allowed to be married. "Appropriate" and "allowable" are two very different standards.

Ten Minas Ministries said...

Nat G:

Thank you for your comments. You make some very valid points that are worth discussion. I know it seems like my post went on forever, but believe me when I say it was severely edited for space considerations. As a result, I can see where you would raise a lot of your issues, but here in the comments please allow me the opportunity to flesh my thoughts out a little bit.

As for the issue of marriage and sex going hand in hand, I will have to respectfully disagree about the government condoning sex in marriage. You are correct in a number of respects. For example, rape is certainly no longer permitted within the marital relationship and governments also permit sex between non-married partners. In fact, I will go so far as to concede that not all states permit annulment when the marriage has not yet been consummated (Maryland, as you seem to implicitly observe, does not list that as a ground, although it is still a relevant factor in neighboring Virginia).

Please permit me to raise a few points in response. First, to my knowledge all states recognize adultery as a ground for divorce. Why is adultery considered to be such a big deal unless at least implicitly sex is supposed to be reserved to the marital relationship? Again, we get back to the fact that sexual relations are considered to be part of the marital relationship. I believe this is a relatively non-controversial statement even on cultural grounds. It is pretty well accepted that marriage includes a sexual relationship and that this sexual relationship is supposed to remain exclusive. I also believe it is clear that the government supports this belief by allowing people out of their marriages if that sexual fidelity is violated.

Second, I agree that governments also allow consensual sexual intercourse to take place between unmarried people. But the fact that the government condones a certain behavior in two situations does not negate the fact that it condones it in one (when that one is included in the initial list of two). In other words, the fact that I am allowed to drive 50 miles per hour on 15th Street, where the speed limit is 55, and on 18th Street, where the limit is 50, does not mean the government is not allowing me to drive 50 miles per hour on 18th Street. The fact that sexual relations are also condoned in other situations does not change the fact that by asking me to accept same sex marriage the government is asking me to condone it in this particular situation.

Obviously sexual relations are not always permissible. Every state (again, to my knowledge) has a certain age, below which you are deemed incapable of consenting to a sexual act, such that even if both parties “consent,” it is still illegal. Ultimately, though, unless you are going to advance the position that I can reasonably expect that two married people will not be engaging in sexual relations, I believe the point still stands. We really do not need to agree on the specifics in order to agree on the basic concept: sex is part of marriage. True, people may be engaging in those relations prior to marriage, but I also am not being asked to even implicitly condone such relations via a referendum or through my duly elected officials. The point is this: Is there a reasonable expectation that people who are married will be having sex? If so, then condoning the marriage at least implicitly condones the sex.

Ten Minas Ministries said...

In regard to the civil rights issue, I actually have spoken to many people who have tied the same sex marriage issue to the broader civil rights movement, not solely anti-miscegenation laws. But I absolutely agree with you that tying it specifically to this issue certainly makes a far more appealing case. You are completely correct in that. Ultimately, I am not sure how it makes a difference, though. People are still being treated differently because of a physical attribute (the color of their skin) not an activity in which they participate. And I will be the first to concede that not all opponents of same sex marriage construct their argument this way. Many do treat people differently because of their feelings of attraction. As should be clear, I do not think that type of argument is supportable. It is the action, not the innate qualities that could potentially justify differential treatment. Race is “sacred” regardless of what race it is. So telling Caucasians they cannot marry African-Americans is just as wrong as telling African-Americans they cannot marry Caucasians. The justification is still based on something people are instead of what they do.

Your comment about my use of the word “sacred” is well taken, and I struggled with whether to include it or substitute something else. I am open to suggestion, but the problem I had was that I could not come up with another word that truly captured the incredibly high regard in which I believe these qualities should be held. “Honored?” “Respected?” “Revered?” None of them quite seemed powerful enough. So I settled for using the word “sacred” but following it up with a qualifier to try to diminish the theological implications that term usually carries. I apologize if I was not successful in that regard. But I hope that this sheds a little more light on why I chose that term.

I also agree with something you mentioned in passing in your last paragraph to your first post. Not everything that is illegal is so on moral ground. But some things clearly are. The law makes a distinction between acts that are malum prohibitum (i.e., only wrong because the law says so) and malum in se (wrong in their own right). Acts that are malum in se would be wrong even if the law did not say so. Which side of the road we drive on is a clear example of a malum prohibitum crime, but that does not mean malum in se acts do not exist.

In regard to your second post, you raise a very good point. The Bible tells Christians to obey the civil authority. If Maryland eventually passes a law expanding civil marriage to same sex couples, I will respect that. Will I believe God views them as married? No. But I will respect the fact that our civil government does regard them in that manner. This is what I meant when I said that I would not deny anyone the right to live a lifestyle of their choosing. But I cannot celebrate that lifestyle with them. You do not need to convince me that same sex marriage is “allowable” from a civil context. I already agree that it is. I agree it could be done. My disagreement is whether it should.

Finally, I would like to thank you for your comments. We are certainly strengthened by talking to each other about these tough issues. I am reminded of Philip L. Quinn who in one of his footnotes to an article criticizing Alvin Plantinga’s theory of properly basic belief said, “I am grateful to Alvin Plantinga for spending most of an afternoon discussing a draft of this paper with me. It takes a rare kind of generosity to help one’s critics improve their arguments.” I think you have exemplified this quality and have helped prove my point that these issues can be discussed with courtesy and with grace. Thank you.


Ten Minas Ministries said...


It is good to hear from you again. As usual, you raise a number of very good points that force me to reflect before answering.

Also as usual, I find there are many points on which we can agree (it is always a sign of a mature discussion when the parties do not feel like they have to disagree on everything just because they disagree on the ultimate conclusion). You always remind me of the title of Anthony Campolo’s book, “We Have Met the Enemy and They Are Partly Right.”

Sex absolutely is only part of marriage. Marriage definitely also includes inheritance rights, etc. That gets into my point about civil unions, though. Most of those rights can already be granted through other means without a marriage. And I have conceded that while I am skeptical, I am certainly more open to a civil union suggestion than marriage for the very reasons you raise: it could theoretically grant all those privileges you discuss without the necessary sexual implications. That being said, a proponent of civil unions would still need to convince me why the current means of granting those benefits are insufficient and why their relationship justifies granting them an easier process than other unmarried people enjoy.

In regard to your point about laws and objective morality, I do not claim that laws necessarily reflect an objective morality, but rather that the existence of such a morality is a necessary presupposition for our legal system to justify itself. It is the classic distinction between ontology and epistemology. An objective morality can exist whether we actually ever come to a full understanding of it or not. Similarly, an objective morality can exist whether or not our laws ever come to perfectly reflect it. The point is that (at least in regard to malum in se laws) legislators are supposed to try their best to pass laws that are in accord with that objective morality. Otherwise, what is the justification for malum in se offenses? We are all imperfect, so we should naturally expect that different legislatures would come to different conclusions (and that those conclusions will change over time). But the legal system still must assume that such an objective morality exists in order to justify itself.

As for your point about civil rights, I would respond the same way I did to Nat G. You are absolutely correct that we bar discrimination for reasons other than those traits I have labeled as “sacred.” But the fact that the government bans a certain behavior in two situations does not negate the fact that it bans it in one (when that one is included in the initial list of two). If it is wrong to de-sacralize (as I defined that term) certain innate qualities, then the fact that we hold it to be similarly wrong to disrespect some other qualities that are the result of individual choices does not somehow create an exception to the earlier rule about the innate qualities. How can our treatment of a non-innate quality determine how we treat innate qualities?

Again, I thank you for stopping by for a visit. I unfortunately do not have as much time to devote to this type of interaction as I used to and one thing I definitely miss is our thought-provoking discussions.


Nat G said...

Short responses to points which deserve longer ones:

"The point is this: Is there a reasonable expectation that people who are married will be having sex? If so, then condoning the marriage at least implicitly condones the sex."

There is a reasonable expectation that two people who get married will be having sex. Also that the will be sharing meals, mixing laundry, and having the occasional disagreement. We cannot assume that everything that typically takes place in a marriage is therefor specially condoned under the law, much less that marriage should not be available to those who will not be mixing their laundry.

"Ultimately, I am not sure how it makes a difference, though. People are still being treated differently because of a physical attribute (the color of their skin) not an activity in which they participate."

Except both situations can be described either in terms of physical attribute or in terms of an activity. If the attribute is color of their skin, then the activity is inter-racial relations; if the attribute is style of their genitals, then the activity is same-sex relations. If I'm prevented from marrying Taurean Blacque - whether it's because I'm white or because I'm male - then it's because of an attribute that I was born into. That you view them separately speaks more to your existing viewpoint than to the differences in the situation.

We do currently allow marriages to those who will not have sex, either due to choice or to infirmity or incarceration (Maryland does not allow conjugal visits). Heterosexual sex is not a requirement for marriage.

DagoodS said...

Ten Minas Ministries.

Actually (as of last year) every state allows no-fault divorce. While adultery can be listed as a reason, so can anything else—including the fact your spouse leaves their clothes on the floor. Does the fact the law has retracted from adultery being a necessary cause undercut your argument the government has an interest regarding sexual intercourse within a marriage?

(By the way, I looked it up. In Michigan lack of consummation is NOT grounds for annulment.)

Your position regarding objective morality and the law has become muddied. (And I disagree working within civil law requires acceptance of “objective morality” as I presume you mean “objective morality.” But we can discuss that elsewhere.) What law are you saying is malum in se? Marriage? Homosexual intercourse?

I’m not sure you can make the argument gay marriage is wrong in and of itself. And as to homosexual intercourse, as pointed out by Nat G, the law has withdrawn from prosecuting such acts. Again undercutting the strength of any argument the law has any interest in one’s sexual actions.

I did find it interesting you refer to the use of civil law, in light of Perry v Schwarzeneggar where the opponents to gay marriage found it difficult to prove their case under the rules of evidence.

Ten Minas Ministries said...

Nat G.

I absolutely agree that there is a reasonable expectation that married people will be "sharing meals, mixing laundry, and having the occasional disagreement." And if that was all that marriage included I would not have any problem signing off on civil marriage for same sex couples. But as you seem to agree, it is not all that marriage entails. It does also include sexual relations. The relevant question is not whether there is anything morally wrong with same sex couples sharing a washing machine but whether it is morally wrong for them to engage in sexual relations. Pointing to other things about their relationship that are admittedly not objectionable does not address that question. The evidence presented must be relevant to the question under investigation and the fact that marriage includes other things does not negate that it includes this one potentially objectionable thing.

I also cannot agree with your formulation of the civil rights issue as the "act" of "inter-racial relations." The "act" I am speaking of is a specific activity that is undertaken by the party who is not being granted a certain privilege. If you deny privileges to a person because of the color of his or her skin, there is nothing the denied individual did which is prompting that discrimination. So I do not see how your illustration points to an act committed by the person being discriminated against.


You are correct (again, as far as I understand) that all states recognize no-fault divorce, but at least the states in which I am licensed also make a distinction between fault and no-fault bases. For example, in Maryland there is a minimum 12 month waiting period for no-fault divorce (at least that is my understanding; I also confess that I do not practice in this area). There is no such waiting period if you assert the ground of adultery. Adultery is obviously also relevant in property distribution. The legal system still places high value on fidelity within the marriage. Just ask any divorce attorney whether they would rather have a client who committed adultery or one who did not.

My point about malum in se laws was made in support of my broader issue on philosophy of laws. If some laws (any laws) are considered to be malum in se, where does the "in se" portion of that definition come from if not the presumption of an objective morality? If morality is subjective, then nothing is "malum in se."

Finally, in light of your reference to the Perry case, allow me to be clear that I am not arguing that civil same sex marriage is illegal or unconstitutional. My argument here is not whether it CAN be adopted but rather whether it SHOULD be adopted. I agree that a state legislature would be perfectly within its rights to pass such a law. I am simply saying that I do not believe it would be right to do so.

Thank you both again.


Ten Minas Ministries said...


I just realized another point on which I probably wasn't clear enough and may have led to confusion (especially with you, a fellow attorney). In this post I often used "civil" law in the sense of distinguishing it from "moral" law; i.e., the legal system of America. In those instances I was not speaking narrowly of "civil" as opposed to "criminal." I should have been more clear about that. I apologize.


Nat G said...

"The relevant question is not whether there is anything morally wrong with same sex couples sharing a washing machine but whether it is morally wrong for them to engage in sexual relations. "

It is only "the" relevant question because you choose to make it so in your particular fascination. Given that we do not legally condemn same-sex sex outside of marriage, nor do we legally condemn mixed-sex sex inside or outside of marriage, and about the only legal link you've found is not to the right to have sex but to the right of someone to end a marriage contract not on the having or not-having of sex within the marriage, but on the violation of a perceived exclusivity, that's a pretty far jump. That we presume that couple will have marital spats does not mean that by marrying them, we are in any way condoning their marital spats; the same can be said of their marital sex.

"If you deny privileges to a person because of the color of his or her skin, there is nothing the denied individual did which is prompting that discrimination."

You're right' if I am not allowed to marry Taurean Blacque because my skin is white, there's nothing I did that made my skin white. But if I'm not allowed to marry Taurean because I have male genitals... if you think having these genitals is some choice I've made, you're wrong. They are original equipment, I did not ask to have them any more than I asked to be white. I suppose that I could, in theory, choose to get rid of them, but I suspect that would not remove your objection to the Taurean/Nat nuptials.

There is a large amount of societal good to be had from marriage, including same-sex marriage; it seems a shame to do without it based on some illusion that it would give some special condoning that is actually not found under the law.

DagoodS said...

Ten Minas Ministries,

The legal system places high value on whatever will make one prevail. If, in a divorce, one has a conservative judge, I would agree it would generally help one’s case if the opposing party has had an affair. Although in today’s society that has vastly diminishing returns. Most judges I practice in front of (and most divorce lawyers) recognize there are two sides to every story.

This reminded me of a favorite divorce story. I had the “perfect” client—homemaker wife, long marriage and the husband had run off with a younger woman. I trumpeted this fact to the opposing counsel (fault will not affect the divorce itself, but can be considered in property division in Michigan.) The opposing counsel said, “Before you start pushing that in front of the judge, ask your client one question. When is the last time they had sex?”

So I did. I asked her, and she replied, “We haven’t had sex for 15 years! I refuse to—I find it repugnant.” What did she expect him to do? See…there is “fault” on both sides.

I would also prefer to have the rich client. Doesn’t mean the law cares about the finances in a marriage. Also prefer to have the more pleasant client. Or the one without a criminal past. Or one who doesn’t have a mental illness. There are all kinds of factors impinging on divorce—but that doesn’t necessarily mean the law has an “interest” in those factors in marriage.

Ten Minas Ministries: If morality is subjective, then nothing is "malum in se."
O.K. And if morality is objective, then some laws are malum in se. Fine—so which law is it you are saying is malum in se--homosexual intercourse or marriage?

Under subjective morality, it would be neither; under objective morality it could or could not be, since under the subjective none are, and under objective only some are.

The point with Perry was that opponents of gay marriage could not come up with sufficient evidence to ban it. I wasn’t referring as much to the constitutionality, as the insufficiency of proof.

Ten Minas Ministries said...

Gentlemen, I apologize for taking so long to reply. In addition to being very busy, my 3 year old got profusely sick right on top of my laptop computer and now it is not functioning properly. This limits my computer availability. Ah, the joys of children!

Nat G,

Thank you for elaborating more on your point dealing with anti-miscegenation laws. I now have a better understanding of your argument and agree that it is much stronger than I initially believed. Please allow me an attempt at succinctly restating it in order to make sure I have it right:

1 - Anti-miscegenation laws prohibited two people from marrying based solely on their innate physical attributes (i.e., a person with skin of one color could not marry someone with skin of a different color).
2 – Anti-same sex marriage laws also prohibit two people from marrying based solely on their innate physical attributes (i.e., a person with genitals of one type cannot marry someone with genitals of that same type).
3 – If I believe that the first type of law is immoral (which I do), then I should also believe that laws of the second type are immoral.

Am I getting the thrust of your argument correct?

I agree that stated in this way your argument has a lot of surface appeal. However, it makes a logical error called the fallacy of the “undistributed middle.” In simple terms this means that it assumes that because two items have one thing in common they must have all things in common.

Please allow me to illustrate. The activity which I have advanced as being immoral in a same sex relationship is intercourse. You correctly point out that intercourse would be involved in both types of marriages included in your argument. An opponent of inter-racial marriages could (and in fact did) argue that inter-racial marriage was immoral and therefore the marriages should be prohibited on that ground. So far you and I are in total agreement.

Here is the point of our divergence. What is the innate quality at issue in each scenario and does it bear any relation to the activity being advanced as immoral? The alleged immoral activity is the same in both: sexual relations. The innate quality in the first scenario is race. Race obviously bears no connection whatsoever to sexual relations. The color of someone’s skin has no bearing at all on the act of intercourse. Yes, the child will genetically bear some qualities from each parent, including racial characteristics, but that is true of any sexual relations, even between those of the same race. The sex act is identical regardless of the race of the participants.

What is the innate quality at issue in the second scenario? Here it is the sexual physiology of the participants. This has a direct bearing on sexual intercourse. We can no longer say that the act of sexual intercourse is the same in relationships within this category and in those without. Whereas, the innate quality in the first scenario had no relationship to the activity being advanced as immoral, in the second scenario there is a direct bearing of one on the other. This, in and of itself, does not mean the behavior is immoral, but it does mean that we must address the question and cannot dismiss the issue on the innateness of the quality alone.

Ten Minas Ministries said...


I will briefly respond to one of your points before I make some general comments intended for both of you.

You closed your last comment by saying “The point with Perry was that the opponents of gay marriage could not come up with sufficient evidence to ban it. I wasn’t referring as much to the constitutionality, as the insufficiency of proof.”

This has been one of the greatest victories of the cultural lobby in favor of same sex marriage, convincing us that it is those who oppose them who should have the burden of proof. In your comments you seem to indicate that even you accept that this is where the burden should lie, but you advanced no argument to support that decision. As I said in my original post, I disagree with this starting assumption. In light of the biological design of the human body, I believe the burden of proof should lie with those in favor of same sex marriage. I find that most of the arguments raised in an attempt to shift the burden do not address the issue at hand (i.e, my points about love and an alleged biological predisposition in the original post). If the burden properly lies with those in favor of same sex unions, then the question should be whether they have met their burden, not whether their opponents met theirs. If the burden should not lie where I have assigned it, why not?

As for the remaining points made by you gentlemen, I initially tried to write a response to each one, but came to the conclusion that we were embarking on a journey that would only serve to weave a web of confusion. What I mean by this is that you were asking questions about evidence I had offered as if I was offering it to support one premise when really it was offered for another. The fault is mine for not expressing myself clearly enough. Therefore, in an effort to keep us on track, allow me to restate my main points in syllogistic form:

(1) It is legitimate for the civil law to ban, or at least refuse to condone, immoral behavior.

(2) Same sex intercourse is immoral.

(3) Intercourse is a reasonable expectation of civil marriage as a natural outgrowth of that relationship, not an abuse of it.

(4) By legally permitting same sex marriage, the government would be condoning the creation of an institution in which immoral activity would be expected as the natural outgrowth, not the abuse, of that institution.

(5) Therefore, it is legitimate for the government to ban same sex marriage.

Ten Minas Ministries said...

The first premise is a broad philosophy of laws premise. It is for this premise (and this premise alone) that I offered the example of malum in se offenses. Clearly the civil law does, at least at times, justify itself on moral grounds. I have also phrased this premise in terms of being “legitimate” to encompass my point that I am not contending that a legislature must ban these marriages, only that they should.

The second premise is what I believe to be the most crucial and potentially controversial. Yet thus far I do not believe any of your arguments have sought to address it. This is where I have tried to steer the conversation because I believe the argument will rise or fall on this point. In response to your question, Dagoods, I am not arguing that any particular “law” is malum in se (as I said, that concept was really only raised in conjunction with premise 1), but I would concede that my argument includes the premise that the act of same sex intercourse in malum in se in the sense that it is prohibited by objective moral law. That is explicitly stated in premise 2.

I believe we have gotten sidetracked on the third premise and delved into all sorts of side issues. The point is not whether the legal system does or does not ban or condone these relations. If the remaining premises are true, that system is now being asked to do so. Two wrongs do not make a right, so to speak. Whether the system has done the correct thing in the past is irrelevant to the question of whether it should do the right thing in the present. Also, a sub-point that I added which I thought was necessary for clarity is that sexual intercourse, unlike marital arguments or rape within that relationship, is considered to be a natural outgrowth of the marital relationship, not an abuse of it. Naturally, the government cannot be accused of condoning behaviors which are an abuse of the very institution it creates. However, that is not necessarily the case for those behaviors which are the natural outworking of that institution.

The fourth premise is merely the logical outworking of the previous two. I believe that if it is to be challenged, it really must be on the basis of challenging one or both of the previous two premises. However, I am open to your observations.

Given these premises, I believe the conclusion naturally follows. Again, this conclusion is phrased in terms of legitimacy because I agree that that civil system is not required to prohibit these marriages.

Ten Minas Ministries said...

I obviously would be interested in hearing your thoughts on premise 2. However, I have advanced the argument as a whole and therefore cannot complain if you instead want to discuss other aspects of it. The points we discuss must be relevant to the premises advanced, though.

For example, nowhere does this argument claim that same sex marriage would be unconstitutional or illegal under other existing laws (except for states which have an express constitutional prohibition, of course).

This argument similarly does not claim that marriage does not contain attributes other than sexual intercourse which are not objectionable. You are free to offer up as many other attributes as you like, but it does not alter any of the premises because none of them claim that such attributes do not exist, nor does the argument depend upon that implication for its validity.

Finally, the argument does not deny that the legal system (either explicitly or implicitly) permits consensual intercourse outside the marriage, even amongst same sex partners. But then again, that is not the question we are being asked to address. The system is now being asked to (at least implicitly) condone that behavior within a marriage. Under my argument it would be immoral both inside and outside the marriage. Does that mean it should be criminalized? No. There is a difference between permitting an activity and condoning it. I have repeatedly stated that I will not deny someone the right to live such a lifestyle, but I cannot celebrate it with them. The government could legitimately decide to allow people to engage in this immoral behavior, but refuse to take any steps that could be viewed as an open endorsement of it. That is the thrust of my argument and why raising circumstances in which the government permits same sex intercourse is irrelevant.

I feel that I personally have profited greatly from our discussion. If you wish to continue, I would be more than happy to participate as well. Please let me know which of my premises you do not accept and why. I apologize in advance if my responses are somewhat delayed. Even though my laptop is not fully functional at the moment, I will do the best I can.

Thank you gentlemen again.


Nat G said...

First off, I hope that your 3 year old is feeling better, and that your laptop will soon be as well. I myself have been slowed down by a sick 1 year old this week, although that was due more to his needing my attention than any havoc wreaked upon my electronics; he is now fine, and life is simpler again. However, I do have catching up to do and don't have time at the moment to give all of your posts the attention they deserve at the moment, so for now I will just tackle the post directed specifically at me - and even that, I may give shorter shrift than it deserves.

In your summary of my argument, you get points 1 and 2 dead on, but 3 you got a bit off; I was not claiming that you should view both as moral or both as immoral, but merely that the logic you had put forth to distinguish them did not, in fact, distinguish them. If we want to address what creates a differentiation between the two cases, we have to address other issues... which you now have gone on to do.
However, even with what you then put forth, you seem to be working backwards (from an argumentation sense, if not from a belief sense). You see to start with a belief that interracial relations are morally fine (with which I would agree), and same-sex relations are not (with which I would not concur), and then build justifications for it. While we can agree that interracial relationships are morally acceptable, at the time of Loving v. Virginia (the case that struck enforcability of antimiscegenation laws in this country - including the one in Maryland, which was still in place in 1967), that was not the common view, and people had their arguments to support those views - some grounded in religious belief, some in secular belief about the value of racial purity. These were things that they viewed as an "innate quality" - that race is an innate quality which is not important to you is understandable but it is not inherently objective.

Those who were fighting those laws were fighting to get marriages legalized despite a common moral belief against them - and that puts those fighters very much in the same camp as those arguing for legalizing same-sex marriage today. That doesn't mean that one cannot be right and one wrong, but it does mean that there is a lot of similarity in the battles. And those fighting to keep the races separate back then would likely have also been against same-sex marriage, and would likely have found ways of equating them, had the issue arisen then.

Ten Minas Ministries said...

Nat G.

I am sorry to hear about your 1 year old. Sick children can take a lot out of you and, in my case, out of my computer as well! I am taking it to a friend tomorrow (who is also a certified Mac repairman) to be fixed, so I may be without my laptop for a while.

It may surprise you to hear this but I actually agree with the manner in which you characterized my argument in your latest post, at least from a certain perspective. In a way I am starting out by assuming same sex relations to be morally wrong. But it is not in the manner of circular reasoning (i.e., assuming something as a starting premise then building upon that premise to "prove" the same thing you started out by assuming).

Recall that in my original post I assigned the burden of proof to those in favor of same sex relations. This means that unless or until I am convinced otherwise, my default position is to believe that same sex relations are morally wrong.

Of course, I also gave my reasons for assigning the burden as I did, so it was not a mere arbitrary coin flip. Also, the reasons I gave for placing the burden on those in favor of same sex relations would not apply to inter-racial relations, so they could not be used to justify assigning the burden to those arguing that those relations are moral. I am open to that discussion, though, if you feel I have allocated the burden improperly.

Thank you again for sharing your thoughts. I hope your child feels better soon.


DagoodS said...

Ten Minas Ministries,

I am unclear under what system of morality you are claiming homosexual sex is immoral. (Nor am I clear as to the particulars—is it the act or the gender?)

Your blog entry indicates you are not using Divine Command theory. You provide concerns about the utilitarianism system, make a confusing argument regarding Kantian ethic, and claim Aristotelian ethics results in a “tie.”

So if you are not using any of these—which one ARE you using to claim homosexual sex is immoral?

Hard to argue (with our without the burden of proof) if I am not even sure what system you are indicating you are using.

DagoodS said...
This comment has been removed by the author.
Nat G said...

"Of course, I also gave my reasons for assigning the burden as I did, so it was not a mere arbitrary coin flip."

Oh, I would never accuse it of being a coin flip. If I wanted to be dismissive of it, I'd be more likely to invoke a stacked deck than a coin flip... but I don't think it needs to be dismissed like that. It is, however, a bit of mis-aimed logic. By saying that because heterosexual relations are procreative, and homosexual ones need artificial means (and I'll confess I'm not 100% sure I know what you mean; are you discussing lubrication?) you seem to be suggesting that this is an issue of heterosexuality versus homosexuality. If we need to declare one and only them to be immoral or illegal or not condoned, then that divider makes sense. But I know of no one making that case. I know of no one looking to legalize same-sex marriage but illegalize mixed-sex marriage. While there are people who hold that even heterosexuality is a lesser state than celibacy (Jesus and Paul among them), you'd probably have to look to some extreme fringe of radical feminism to find anyone seriously holding forth that homosexuality is moral but heterosexuality isn't. That's not the conflict at hand.

If the issue ever comes down to making homosexual marriage mandatory, then I'll be on your side, believe me.

Ten Minas Ministries said...

I am typing on an iPod, so I will have to keep this short. Otherwise I face the serious risk of multiple typographical errors due to my fat thumb syndrome.

Dagoods: As in the courtroom, it is the party with the burden of proof that must present the evidence to prove it's case. If no evidence is offered (or if the only evidence offered is irrelevant) then the party without the burden prevails. I have defended my assignment of the burden on those in favor of same sex relations (and it is the act of intercourse I am arguing is immoral). If this is true, then it is the responsibility of someone advocating that position to demonstrate why it IS moral, not vice versa. While I did offer some affirmative argument on the side of those opposed to same sex relations (the point about the "sacredness" of gender) the bulk of the argument was refuting the typical reasons proffered for the alleged morality of those relations. That is why I raised those other ethical systems, to demonstrate that I do not believe that same sex intercourse could be supported as moral under them. I do accept a form of Divine Command ethic, but because I do not believe the proponent of same sex intercourse could meet the burden, I did not go into it. If the burden of proof is allocated as I proposed, then we do not need to get into questions of whether the divine exists because even under non-divine theories, the practice is not supported.

Nat G:

You raise good point, and I absolutely agree that logically we do not have to hold that one alternative be moral and one be immoral. It is possible for them both to be moral. But this is really two separate questions:

(1) Is heterosexual intercourse moral?
(2) Is homosexual intercourse moral?

I have no problem, if you think it fair, assigning the burden of proof on both of these questions to the party arguing in the affirmative. I believe that in regard to (1) that burden could be met under multiple ethical systems. Not so with (2).

Also, I would note that my point about hetersexual relations is more than just them being procreative (there are many hetersexual relations that are not). My argument is more along the lines of "proper function" as described in Albin Plantinga's philosophy (which is far too in depth to be fully explicated on an iPod).

Thank you both again.


Ten Minas Ministries said...

That should read "heterosexual," not "hetersexual" and it is "Alvin," not "Albin" Plantinga. My fat thumbs apologize.

DagoodS said...

Ten Minas Ministries,

I posted a comment (and saw one from Nat G) that subsequently disappeared. I will post it again:

I hope your child is feeling better. Can you make a claim through insurance for the laptop? Do you need a lawyer to help? *grin*

I was slightly confused by your comment on Perry v Schwarzeneggar. Perry (the plaintiff—the one with the burden of proof) was pro-gay marriage. Gay marriage did assume the burden of proof. And prevailed.

Your premises are revealing.

“(1) It is legitimate for the civil law to ban, or at least refuse to condone, immoral behavior.“

I would agree. The huge sticking point (which immediately appears in this discussion) is how to determine what is “immoral.”

“(2) Same sex intercourse is immoral. “

I disagree, but more importantly in utilizing your argument—what precisely is “immoral”? I see two possibilities: 1) the act itself or 2) the genders involved. You touch on both within the blog entry.

Act itself

Every single sex act a homosexual couple can commit (I will avoid being graphic) can equally be enjoyed by a heterosexual couple. If we are to determine the act itself is immoral, then this would apply to heterosexual couples, too. You refer in the blog entry to parts designed to “go together.” Are we saying engaging parts not necessarily designed to go together is immoral?

Many people (male and female) achieve orgasm easier by means other than the “go together design.” Are you claiming the only moral sexual intercourse is the “go together” kind? I highly doubt it. If you are, then this argument has nothing to do with marriage itself—it has to do with sexual acts. Under your first premise, you should be arguing all forms of sex, other than one, should be banned as immoral.

Further, (since you are not using biblical arguments) sodomy is legal in the United States ever since Lawrence v Texas. If you are claiming two people should not marry because it could lead to something immoral as determined by law, it cannot be sodomy, as sodomy is legal!


Alternatively, you may be claiming this is immoral because the people are the same gender. You refer in the blog entry to procreation as a result of sex—something two men or two females cannot achieve through sex.

Again, this fails in an argument about marriage, as child are not a necessary element of a marriage. This same argument (lack of procreation) could equally be used regarding birth control. Anything preventing procreation would likewise be “immoral” and should likewise be banned by the law.

It seems to me, by your first two premises, you must argue that homosexual sex should be banned by law. Yet this occurs both within and without marriage. In other words, this isn’t an argument about marriage—it is an argument to make homosexual sex illegal.

It smells as if one is trying to get through the back door what they cannot through the front. Instead of pushing laws to prohibit homosexual sex (which would fail), the argument pushes laws to prevent marriage on the premise it prevents homosexual sex that is already occurring from occurring!

Now, if you are arguing biblically, I would agree homosexual sex is considered immoral. But since you are not, how can you argue, after Lawrence and under these premises, that the State has any interest in preventing a marriage because it would result in a legal activity?

Nat G said...

Assigning the burden of proof to those claiming something is moral would seem to go against any system of morality that comes to mind. Generally speaking, things are viewed as moral (perhaps not laudable, but acceptable) unless there is some reason to find otherwise. This fits in with the biblical system of morality, which generally exists not by describing a range of things that are acceptable, but by assigning certain things as being forbidden (immoral), and some as being required (immoral to fail to do). To suggest that things should be viewed as immoral unless specifically established as moral seems a impractically restrictive way to view the world.

Ten Minas Ministries said...


The computer is now fixed! I didn’t have any insurance to cover it, but it didn’t cost too much to fix (I have a friend who cut me a good deal).

As a general response to your comments I would simply point out that this isn’t a conversation about what is legal, it is about what should be legal. At one time it was legal to own people as slaves. Did that make it morally right? Of course not. And that practice eventually became illegal precisely because it was morally wrong. You produce examples of what is or is not legal, but those examples are irrelevant to the question of what should be legal. Whatever you believe to be the source of the moral law, it stands higher than the civil law.

I also wish to thank you for focusing on the argument I presented and offering an explanation why you believed one of my premises to be false. That helps steer this conversation in a productive direction. Please permit me to respond why I believe your argument do not disprove my premise about the immorality of homosexual intercourse.

The discussion of sodomy is shifting the focus. I am speaking strictly of the act of homosexual intercourse. I do not believe you can separate out the act from the genders of the parties involved. When speaking of that act alone, I respectfully disagree that homosexual intercourse is the same as heterosexual intercourse. It is not true that homosexual couples can perform intercourse in the same way as heterosexual couples. That being said, you may be absolutely correct that my position (in order to be consistent) may entail that sodomy is also immoral. For that reason perhaps it should not be condoned by the government (I have never advocated criminalizing homosexual intercourse; there is a difference between tolerating a practice and condoning it; I will be the first in line to defend a couple’s right to live a lifestyle of their choosing so long as I am not asked to celebrate or condone it). But again, that is irrelevant. It is irrelevant that sodomy is legal for the same reasons I cited above (just because something is legal does not make it moral). Also, sodomy is not intercourse. Even if “A” is moral that does not make “B” moral if “B” is a different action. They may be similar in many respects, but to argue that intercourse must be moral if sodomy is moral would be to again commit the fallacy of the undistributed middle. My argument is not that homosexual sex should be illegal. My argument is that it should be tolerated, but not condoned because it is immoral.

While you did not expressly set this forth, you appear to be making a circular argument. At the beginning of your post you agreed that it is legitimate for the law to refuse to condone immoral behavior. But then when asking about sodomy you stated, “If you are claiming two people should not marry because it could lead to something immoral as determined by law, it cannot be sodomy, as sodomy is legal!” (Emphasis added). Are you arguing that morality is determined by what is legal? If so your argument is circular: The law should not condone what is immoral but we determine what is immoral by looking to the law. If this is not your argument, on what do you base morality and how does your theory condone homosexual intercourse?

Ten Minas Ministries said...

Nat G.,

Your last point confuses ontology with epistemology. I agree that ontologically speaking, things are generally considered moral unless banned. But we do not have perfect knowledge of morality. We have to assign some method of arriving at our moral beliefs. Have you ever had someone encourage you to do something but it didn’t “smell right?” Perhaps you couldn’t quite put your finger on why, but you were skeptical about whether it was something you should be doing? If so, then you have done the same thing I have advocated here. For the reasons I stated before, homosexual intercourse simply does not “smell right.” So I remain skeptical of its morality unless someone convinces me otherwise by whatever slim margin. I do not believe this is all that uncommon of an epistemological methodology.

Thank you both again for your participation. I apologize for the delay in my response this time. I wish I could promise that my response time will improve, but my wife and daughter are both in a play that opens Friday night (my daughter is one of the leads and my wife, in addition to having a small part, is also the chief makeup designer), so this week is likely to be quite hectic in our household. I will do the best I can, though.


Nat G said...

Go - take care of the ladies in your life during this stressful time, and may they both break the appropriate limbs. I've trod the boards enough to know how vital spousal support can be during the last days before opening night.

Besides, I'm likely bowing out. After all, you've defined things so that 1) there's only one point of your stance that counts to be logically addressed, and 2) that's the aspect of your stance that's based on pure olfactory reaction, rather than logic. That's a mug's game to be playing.

I do wish for you that the rights you care about never get put to the vote of those who have the unexplained willies about them.

Ten Minas Ministries said...

Nat G.:

"After all, you've defined things so that 1) there's only one point of your stance that counts to be logically addressed, and 2) that's the aspect of your stance that's based on pure olfactory reaction, rather than logic."

Actually, what I said was "I obviously would be interested in hearing your thoughts on premise 2. However, I have advanced the argument as a whole and therefore cannot complain if you instead want to discuss other aspects of it." I did not personally believe the other premises were particularly controversial, but was more than willing to talk about them.

As for the "olfactory" issue, that was confined to our discussion of whether it is ever appropriate to assign the burden of proof to someone claiming an action is moral as opposed to immoral, and I only raised it to point out that this is a more common practice than you seemed to believe. I don't really see how you could say I did not rely upon logic when I spelled my argument out in specific premises and conclusion. Attack the validity or the soundness of that argument and you disprove my point. That is what I invited our discussion to explore.

That being said, I do not believe it would be productive to rehash ground we have already covered. So I thank you for your insights. You made some very good points and made me do some serious thinking. Feel free to stop by again if you like. I enjoyed our conversation.


DagoodS said...

Ten Minas Ministries,

I’ve now framed two (2) different responses and scrubbed them both. This (my third attempt) will be my last comment (unless you desire some clarification) on this entry.

Look, you hold to Divine Command—stick with what you know. I appreciate the attempt to demonstrate gay marriage should be banned without utilizing your chosen moral system, but ultimately this fails to be persuasive.

For an analogy, imagine I made the following claim: “Richard Dawkins says, ‘Christians think the use of automobiles is immoral because Jesus didn’t use cars.’ Because Jesus didn’t, and Christians must emulate Jesus, the burden of proof is on the Christians to demonstrate the use of cars IS moral.”

Thanks to your blog entry, I’ve spent some time researching what Kantian philosophers and Utilitarian philosophers indicate within their moral system regarding homosexual marriage. To be honest, I couldn’t find a single utilitarian who argued it was immoral (indeed, I found quite the opposite) and the closest I could find on Kant was that he was anti-homosexual, although his ethics may not have been. (Kant also found masturbation to be immoral…just so we know what we are working with.)

The same way you probably do not consider Dawkins to be an expert on what Christianity is (especially making a statement we cannot find Christians say), I question why I should consider your claim regarding utilitarian morals when I cannot find a single utilitarian who makes the same claim. Further, my declaration of a statement does not shift the burden of proof to the other person to prove me wrong—I still must give backing for my own claims. How it “smells” to me is not very convincing to people who it doesn’t “smell.”

Secondly, it is necessary for your argument that homosexual sex is immoral. Yet the reasoning for why it is immoral—design and procreation—is equally applicable to heterosexual sex, and logically would likewise need to be banned. That appears inescapable to me. (In fact, I think it would logically follow contraception should be banned as well, under this scheme.)

Again, I can see why homosexual sex is immoral under Divine Command, and how it follows homosexual marriage would be as well. Outside of that…I do not see it.

Thanks for the discussion.

Ten Minas Ministries said...


As I pointed out to Nat G., he was perfectly within his rights to accept my position to be true for the sake of argument in an attempt to show that my system leads to internal inconsistency or that some of my conclusions do not logically follow from my worldview. That is a completely legitimate enterprise, and I would never accuse Nat G. of conceding my stance simply because he adopted it for argument’s sake.

But if this approach is a legitimate method to criticize my arguments then it must be equally legitimate for others. I have studied all of the ethical theories discussed in this post in some detail. I have never claimed that a majority of philosophers who adopt a Utilitarian, Kantian or Aristotelian ethic conclude that homosexuality is immoral. My argument has been that such a conclusion does not follow from their worldview. In other words, any such argument that has one of these ethical systems as its base, if properly carried to its logical conclusion, does not support the morality of homosexual intercourse. Of course there are plenty of people who disagree with me and believe they can support the morality of same sex intercourse based upon these systems. I believe that even if we adopt their ethical system for the sake of argument, however, it still does not lead to that conclusion. My challenge throughout has been for someone to defend the position of those philosophers to whom you refer.

Surely an appeal to majority opinion cannot be our test for truth. If so, then modern science would never be open to new theories when there is already a general consensus on an existing theory. Even if an opinion is embraced by the majority, that does not make the majority right. I have proposed that any attempt to justify homosexual intercourse under these ethical systems will fail. If you (or anyone else) feels otherwise, I invite you to proffer a specific argument (as opposed to simply a general appeal to the conclusions of a non-descript category of “other philosophers”) which we can evaluate.

The mere fact that Richard Dawkins is not a Christian does not per se mean he is misrepresenting the Christian position. His arguments must be addressed on their merits, not automatically disqualified because he arrives at a conclusion that is different than the one under investigation. If that was the way we evaluated arguments we would never consider the opinion of any critic. I keep coming back to the same question: If someone believes that homosexual intercourse can be demonstrated as moral under one of these systems, I ask that they kindly set forth a logical argument that purports to reach that conclusion and we can interact on whether the conclusion follows from the premises, just as I have invited criticism of the logical argument I advanced.

Again, as I said to Nat G., I did not say that I believe homosexual intercourse to be immoral simply because it does not “smell” right. That was one isolated example in the limited arena of our discussion on the burden of proof. Nat G said that acts are considered moral unless and until they are shown to be immoral. I used the “smell” example solely to show that this is not the way people (including, most likely, Nat G himself) live their every day lives. I drew an analogy to the “smell” test. I did not base my assignment of the burden of proof upon it. I provided very specific reasons why I assigned the burden of proof as I did; specifically the biological compatibility of the male and female. In response to your final point, I would also point out that I did not equate this compatibility solely with “procreation.” I cannot see how one can deny that there is compatibility between the male and female sexual organs that does not exist between male and male or female and female sex organs. This is true whether the intercourse leads to conception or not.

Ten Minas Ministries said...

At this point I find that most of my comments are simply rehashing things that have already been said. That is usually a good time to end things. Otherwise, I think we run the risk of losing focus and becoming frustrated. I will close, then, by simply inviting anyone reading this to review what both sides have had to say on the issue and decide for themselves whether the argument I proposed was ever squarely addressed or refuted. If anyone else would like to propose an argument for the morality of homosexual relations, I will, of course, be more than willing to rejoin the discussion and see where it leads. I continue to be willing to meet the critic on his or her terms. For the purposes of this post I am not advancing a divine command ethic as the basis for my position. I am instead suggesting that homosexual relations cannot be justified even under other ethical systems. If a reader believes that such an argument can successfully be advanced (whether Utilitarian, Kantian, Aristotelian or some other ethic) then I invite him or her to do so and we can have an open discussion on its merits to see whether the argument can be successfully defended.

Thank you again for your always interesting contributions.


Nihlo said...

The law is not supposed to legislate morality.

Ten Minas Ministries said...

I've got to respectfully disagree with you, Nihlo, at least under the American system of justice. Of course, I can't speak of how Canada justifies its laws, but at least in part, the American system clearly justifies some of its laws on the basis of morality. That is the entire essence of the distinction between malum in se and malum prohibitum. That being said, I concede that this does not necessarily mean that it is the duty of the legal system to affirmatively ban all things that are immoral. As I said previously in the comments to this post, there is a difference between outwardly banning an action (which may or may not always be appropriate; there is a freedom interest that must be balanced) and condoning an action.

But I do not believe that the blanket statement "The law is not supposed to legislate morality" can be supported.

Besides, the moment you use the word "supposed," I could simply ask, "By what standard?" Saying that something is "supposed" or "not supposed" to happen assumes a measure by which we can determine what is supposed or not supposed to happen. In essence, you would be implying an objective moral rule that it is immoral for the law to legislate morality. First, I believe that would be inconsistent with what I know of your personal nihilistic position. Second, even if you conceded the existence of objective morality, you would need to defend that alleged moral rule.