5. Homosexuality

1. Homosexual behavior

Many people are opposed to homosexual behavior. But why? What reasons do they have for their opposition? Are these reasons good reasons? Do they show that homosexual behavior is overall morally wrong? If so, under what circumstances?

There could of course be many reasons for being opposed to homosexual behavior. Some people have a visceral aversion to it. But of course a gut reaction is not an argument, and we need a good argument if we are to have a solid basis for being opposed to something.

One popular argument against homosexual behavior is a very simple one. It can be put as follows:

Arg. 1: (1) Under all circumstances, engaging in homosexual behavior violates God’s commands.
(2) Under all circumstances, it is overall morally wrong to engage in homosexual behavior.

Popular or not, though, this argument is hopeless. It is unsound. Why? Because it is invalid. One pretty reliable sign of this is that the conclusion mentions something (overall moral wrongness) that is not mentioned anywhere in the premise. The conclusion introduces something new. How, then, could it follow simply from that premise alone?

This problem is easily fixed, though. Presumably someone who gives Arg. 1 as his reason for being opposed to homosexual behavior is really relying on an unstated premise. He may take the premise to be so obvious that it doesn’t need stating. But we should be more cautious. Let’s bring the premise out into the open. Once we do, we have the following argument:

Arg. 2: (1) Under all circumstances, engaging in homosexual behavior violates God’s commands.
(2) Under all circumstances, it is overall morally wrong to violate God’s commands.
(3) Under all circumstances, it is overall morally wrong to engage in homosexual behavior.

This is a considerable improvement over the first argument. As I hope you can see, it is valid. Anyone who accepts the premises is thereby committed to the conclusion. In case you don’t see this, take a look at the following diagram:


If all homosexual behavior (small circle) constitutes a violation of God’s commands (middle circle), which in turn constitutes behavior that is morally wrong (large oval), then it must be the case that all homosexual behavior is morally wrong − the conclusion is inescapable. Arg. 2 thus passes the first test for soundness.

But what about the second? Are both premises of the argument true? Here we run into some difficulties.

Consider the first premise. Why should we accept it? What evidence do we have that God forbids homosexual behavior under all circumstances? Some people would point to certain passages in the Bible as evidence, such as the following two from the Book of Leviticus (18:22 and 20:13, respectively):

“Thou shalt not lie with mankind, as with womankind: it is abomination.”
“If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death.”

What are we to make of such passages? The answer is not at all straightforward. If they are to be taken literally, notice a couple of things.

First, they would appear only to condemn “lying with mankind.” They say nothing about “lying with womankind.”

homosexual couples

Should we therefore infer that female homosexual behavior is fine, that it’s only male homosexual behavior that violates God’s commands? That would be odd. But then, if we take the passages to be evidence that God condemns all homosexual behavior, female as well as male, we are reading into the passages − we are interpreting them.

In fact, this issue arises even if we confine our attention to male homosexuality. Taken literally, the passages would appear to condemn only certain forms of male homosexual behavior and not others. They mention “lying with” mankind. But then what about two men having sex standing up? Would that be OK?

I don’t mean to be flippant. My point is a simple one, and that is that it would seem that those who claim to rely on a literal interpretation of the Bible to justify their opposition to homosexual behavior (and/or to other kinds of behavior) are being hypocritical. They are not taking the Bible literally but are rather giving it a particular interpretation. I hasten to add that I’m not saying that there is necessarily anything wrong with that. I’m only saying that that is what’s going on. But of course one issue that then quickly arises is whether the suggested interpretation is the correct interpretation, and that is likely always to be a matter of some dispute. (Some people, for example, take the second biblical passage quoted above as evidence that God demands that homosexuals be executed. Many others, however, understandably balk at such an interpretation. It’s also worth noting that the Book of Leviticus doesn’t only declare a man’s “lying with mankind” to be “abominable”; it uses the very same language to condemn a variety of other activities, including, in Chapter 11, the eating of pork or shrimp − all the while approving of the eating of beef or cod. What are we to make of that?)

There are of course many people who would reject the first premise of Arg. 2, regardless of the question how certain biblical passages are to be interpreted. They may do so because they don’t believe in God, or because they don’t believe that the Bible accurately reveals what it is that God commands, or for some other reason. These are religious questions, however, discussion of which lies beyond the bounds of this course.

Let’s now consider the second premise of Arg. 2. Putting particular religious questions aside, I would simply point out one lesson from our discussion of the Divine Command Theory. Unless we are willing to say that God’s commands are morally arbitrary, then we will have to say that, even if premise (2) is true, its truth will rest on some underlying facts that constitute the basis of God’s commands. If so, we can surely try to find out for ourselves what these underlying facts are. So, in this particular case, if God does indeed command us not (never?) to engage in homosexual behavior, we can − and, I dare say, should − try to figure out why he does so. Arg. 2 does not itself provide any answer to this question.

Some people think that this question is easy to answer, though. Homosexual behavior is unnatural, they say, and that’s why it’s wrong, and that’s why God condemns it. This suggests the following argument:

Arg. 3: (1) Homosexual behavior is unnatural.
(2) Under all circumstances, it is overall morally wrong to engage in homosexual behavior.

I hope that by now you will readily see that, like Arg. 1, this argument too is hopeless. It’s invalid, just like Argument 1, and for the same reason: the conclusion introduces something new. But I also hope that you will readily see that, as before, this problem is easily fixed, as follows:

Arg. 4: (1) Homosexual behavior is unnatural.
(2) Under all circumstances, it is overall morally wrong to do what is unnatural.
(3) Under all circumstances, it is overall morally wrong to engage in homosexual behavior.

This argument is clearly valid, and so to see whether we should accept it we need to inquire into whether its premises are true.

Before we accept or reject the premises, we need to settle on what might be meant by “unnatural” in this context. Sometimes when something is said to be unnatural, what’s meant is that it doesn’t actually exist or occur at all, since its doing so would somehow contravene the laws of nature. In this sense, mermaids are (or would be) unnatural, as are comic-book heroes like Spiderman who have “supernatural” powers. This of course cannot be what’s at issue in Arg. 4, since homosexuals are perfectly natural in this sense. Moreover, it seems correct to say that, not only are homosexuals themselves natural, in the present sense, but so is their behavior, in that, when they follow their sexual impulses, they are only doing what “comes naturally” (just as heterosexuals are doing what “comes naturally” when they follow their sexual impulses).

We should note that, even if I am for some reason mistaken in saying that homosexuals are only doing “what comes naturally” to them, still Arg. 4 would fail, since its second premise is clearly false in the present sense of “unnatural.” This is because it is surely sometimes overall morally right to do something that doesn’t “come naturally.” It is sometimes, indeed often, overall morally right not to indulge a natural impulse to, say, punch someone in the face or (hetero)sexually molest someone.

Sometimes “unnatural” is used in a second sense, to describe something that might be said to be a “freak” of nature: something that does occur, but only very rarely, like a midsummer snow. Presumably this, too, is not what’s at issue, since homosexuals are not at all rare. Granted, the large majority of people presumably have a heterosexual rather than homosexual orientation, but that is not sufficient reason to call homosexuals unnatural in the present sense. After all, the percentage of people who are 7 feet tall is presumably much smaller than the percentage of people who are homosexuals, but it would seem at best an exaggeration to call being 7 feet tall unnatural (although I suppose we might say that about being 8 feet tall).

You might think that I’m missing the point, which is not whether being a certain way (being a mermaid, for example, or being 8 feet tall) is unnatural, but rather whether behaving in a certain way is unnatural. But even if we focus on behavior, neither of the two senses of “unnatural” so far identified is relevant, since homosexual behavior does of course actually occur and is, moreover, not at all rare.

It’s worth pointing out that, even if homosexual behavior were rare, so that in this sense of “unnatural” premise (1) would be true, Arg. 4 would fail, since its second premise would clearly be false. Consider, for example, a certain kind of behavior that presumably is very rare: playing scales on the piano with one’s toes. Surely no one wants to say that engaging in such behavior is overall morally wrong under all circumstances.

It seems, then, that some third sense of “unnatural” must be intended. I expect most people who endorse some argument along the lines of Arg. 4 have the following idea in mind. We each have a number of bodily organs, and these organs have a “natural” function or purpose. The function of the eyes is to see, the function of the ears is to hear, the function of the tongue is to taste…and the function of the genitals is to procreate. Now, procreation can be achieved only through heterosexual sex and not through homosexual sex. That is why homosexual behavior is unnatural.

We need to be careful here. It certainly sounds plausible to say that the function of the eyes is to see, the function of the ears is to hear, and so on, but it doesn’t follow that we can say something similar about all our bodily organs. What, for example, is “the” function of the lips? You can do a lot of things with your lips. You can speak, you can whistle, you can kiss… (I’ll forgo completing this list in detail!) Are all of these things “natural,” or only some? Which, and why? And what should we say about our sex organs in particular? I assume that no one wants to say that, because these organs are “for” procreation, it is therefore unnatural to use them for the purpose of, say, urination.

You may think I’m just being frivolous. Of course no one wants to condemn urination. It’s the “unnatural” sexual use of the sex organs that is at issue. But just think about this for a moment. If “the” function of the sex organs is procreation, and so the only natural sexual use of these organs is that of procreation, then all non-procreative sex is unnatural. This of course includes much more sexual behavior than just homosexual behavior. It includes all heterosexual behavior that does not, or at least is not intended to, result in procreation. Thus all contraception must be declared unnatural, as must all sexual use of the sex organs by someone who is infertile. Do you really want to say that?

Well, perhaps you do. Perhaps you would say that such behavior is indeed, strictly speaking, unnatural, but that it’s typically perfectly all right, morally speaking, to engage in it. If so, you would then be accepting the first premise of Arg. 4 but rejecting the second.

I suspect that there are very few people indeed who, on reflection, believe that there is a sense of “unnatural” in which both premises of Arg. 4 are true. I’d be very surprised if you did. If I’m right, you don’t accept Arg. 4, even if at first you might have thought you did. Of course, nothing I’ve said shows that Arg. 4 cannot be made somehow to work, but the burden of proof is surely on the person who endorses the argument. Precisely what is the sense of “unnatural” at issue, and precisely why is it that both premises of the argument are supposed to be true?

It is very important to bear in mind that, even if none of the arguments against homosexual behavior that we have considered so far are sound, that does not mean that there’s nothing wrong with homosexual behavior. Remember, an argument’s being unsound does not entail that its conclusion is false. For all that has been said, it remains possible that some other argument would succeed where these arguments have failed.

Before we move to a consideration of the readings assigned for this section, there is one last matter that I want to address. It concerns the distinction between sexual behavior and sexual orientation. Sexual orientation has to do with the sort of sexual behavior to which one is attracted. Normally, of course, people’s sexual behavior conforms with their sexual orientation, but there are many exceptions. Someone who has a homosexual orientation might well engage in heterosexual behavior for a variety of reasons; so too, of course, someone with a heterosexual orientation might engage in homosexual behavior. (It’s also worth keeping in mind that some people have a bisexual orientation, some people are unsure of their sexual orientation, and so on.) Moreover, it is especially important to recognize that, whereas people are typically in control of how they behave sexually, it’s not at all clear that they are ever in control of their orientation. Consider your own sexual behavior. I hope I’m right in saying that it has always been your choice, at least in part, whether to engage in this behavior. (If it’s been behavior that’s involved another person, then I hope that it has also been in part that other person’s choice.) But now let me ask you: when was it that you chose your orientation? That is, if you are attracted to men, when did you choose to have this attraction? If you are attracted to women, when did you choose to have this attraction? I venture to say that the answer to this question is: never. Asking when it was that you chose to be attracted to men or to women seems akin to asking when it was you chose to be male or female. I’m not going to try to argue for this. I’m only asking you to engage in a little introspection. As far as I can tell, just as one finds oneself with certain non-sexual likings and dislikings − a liking for chocolate, say, or a disliking for broccoli − so too one finds oneself with certain sexual likings and dislikings. You didn’t choose to like (or dislike) chocolate, did you? You didn’t choose to dislike (or like) broccoli. Of course, you might well have chosen on occasion to eat broccoli even though you disliked it, but that doesn’t mean that you chose to like it on that occasion. Again, a person can choose to behave in certain ways, sexual or non-sexual, without having chosen to be attracted to behaving in those ways. The reason for bringing this point to your attention is this. If a certain form of behavior (including, of course, sexual behavior) is in our control, then it is perfectly reasonable to ask whether it is ever overall morally wrong to engage in such behavior and, if so, under what circumstances. But if having something (such as a certain sexual orientation, perhaps) is not in our control, then asking whether it is overall morally wrong to have it does not seem nearly so reasonable.

***Here is a good place to stop and consider Question 1 on the Practice Questions for Module 3.***

2. Levin on ho​mosexual behavior

In his complex but provocative article, Levin is a critic of homosexual behavior on the grounds that it is unnatural, but his argument is not captured by Arg. 4 above or, indeed, by anything like Arg. 4. For one thing, he never explicitly claims that there are circumstances in which engaging in homosexual behavior is overall morally wrong (although he may appear to hint at this at times). His concern is rather with the legality of homosexual behavior.

Levin claims that homosexual behavior is unnatural in the sense that it involves a “misuse” of bodily parts, when such misuse is understood in evolutionary terms. (See what he has to say about this in his article on p. 174, both columns.)

(Side-note: Henceforth, when I make references to our readings of the sort that I’ve just made, I urge you very strongly to check them out carefully. I won’t quote the precise passages in these commentaries. After all, you have the readings themselves at your disposal. But the passages in question will always be ones that I take to be particularly important. Having said that, I should perhaps add that you should not interpret my failing to refer explicitly to some page or passage as a sign that it is not important. On the contrary, as I hope you are well aware, you should read all of the articles thoroughly and in their entirety.)

Levin then claims that acting “against nature” and “misusing” one’s bodily parts tends to promote unhappiness, whereas normal use tends to be rewarding and to promote happiness. This is how evolution works: by rewarding or reinforcing certain kinds of behavior. (See p. 177, right column. Note that in this context “prudential” means “in the individual’s best interest.”)

(Another side-note: As noted in the second paragraph of his article, Levin focuses on male homosexuality simply for the sake of brevity. It is of course important not to think of homosexuality as essentially male, although some people may be led to this misconception through a misunderstanding of the root of the term “homosexual.” The “homo” part does not come from the Latin word for “man” (“homo”) but rather from the Greek term for “same” (“homos”). While I’m on this subject, I might as well record my puzzlement at the common use of the phrase “gays and Lesbians,” where “gay” of course means “homosexual.” Why say “gays and Lesbians”? That’s like saying “homosexuals and female homosexuals.” What’s the point?)

Levin acknowledges that homosexuals may not recognize their relative unhappiness, but he says that that doesn’t alter the fact that they do tend to be less happy than heterosexuals. He gives an analogy with laziness, and he stresses that he is talking about tendencies: homosexuals tend on the whole to be less happy than heterosexuals, even though there can of course be exceptions to this generalization. (See p. 177, right column – p. 178, left column.)

Levin emphasizes that, in light of the involuntary nature of sexual orientations (regarding which, see the discussion at the end of Section 1 above), in declaring homosexuality abnormal he is not thereby making a moral judgment about anyone’s having a homosexual orientation. Nor, in fact, is he concerned with making a moral judgment about homosexual behavior, even if such behavior is voluntary. What he is concerned with is what we ought morally do about other people’s sexual orientation and behavior. He believes that, given that homosexual behavior tends to promote unhappiness, we have a moral duty to reduce its incidence if and to the extent that we can. (See p. 179, right column.)

Finally, Levin claims that a person’s sexual orientation, though never in that person’s power to control, may nonetheless at an early stage in its development be in the power of others to control. We can and should construct the social environment of children, whose sexual orientations have yet to be established, in such a way that the chances of their acquiring a homosexual orientation (and thus subsequently engaging in unhappiness-inducing homosexual behavior) are reduced, and we can best do that by showing them that homosexual behavior is to be discouraged. This in turn can be achieved by passing and enforcing laws that do not protect such behavior, i.e., by creating laws that discriminate against homosexuals, thereby making a homosexual lifestyle less attractive to those whose sexual orientations are still unsettled. (See p. 185, right column.)

In brief, Levin’s argument appears to be this:

Arg. 5: (1) Homosexual behavior is unnatural or abnormal in that, from an evolutionary perspective, it involves a misuse of bodily parts.
(2) Such misuse tends to cause unhappiness in those who engage in homosexual behavior.
(3) It is prima facie morally obligatory to prevent unhappiness, when we can.
(4) We can prevent the unhappiness that is caused in those who engage in homosexual behavior by discouraging such behavior, and we can discourage such behavior by passing and enforcing laws that discriminate against those who engage in it.
(5) It is prima facie morally obligatory to pass and enforce laws that discriminate against those who engage in homosexual behavior.

Note again that the conclusion of this argument concerns the question whether it is morally right or wrong to legislate against homosexual behavior, and not whether it is morally right or wrong to engage in such behavior.

3. Critical evaluatio​n of Levin’s article

I hope that you will see, on close inspection, that Arg. 5, the argument that I have attributed to Levin, is valid.

(Side-note: As in this case, the arguments that I will be attributing to our authors will, and must, often be reconstructions of what they say, since they often present their arguments in ways that are not fully explicit. Whenever such reconstruction is done, it is always best to assume, unless there is clear evidence to the contrary, that the argument in question is valid, since otherwise it would be a non-starter. It is only when the test of validity has been passed that the most interesting and important question comes into play, namely: are all the premises of the argument true? After all, if they are all true, then, given that the argument is valid, we must accept its conclusion; but, if they are not all true, then we don’t have to accept its conclusion − at least, not for the reasons contained in the premises.)

So, what we now need to do is to inspect the premises of Levin’s argument. Let’s look at them one by one.

Premise (1): I’m no scientist, but this premise surely has some plausibility, since, as discussed earlier, there does seem to be a sense in which the genitals are “for” procreation. Having said that, I would warn against over-reaching. First, as again was noted earlier, to say that a function, even the “main” function, of the genitals is that of procreation, is not to say that they serve no other function. Secondly, to characterize non-procreative use of the genitals, as Levin does, as misuse seems unwarranted. Is it a “misuse” of the toes to use them to play scales on the piano?

In his article, Murphy complains (on pp. 191-92) that it is misleading of Levin to define homosexuality in terms of behavior rather than as a “psychic phenomenon.” But Murphy’s characterization seems just as misleading. Surely, a homosexual orientation involves having a disposition (admittedly a psychic one, since it involves having certain desires) to behave in certain ways. In any case, Murphy’s complaint really doesn’t pertain to premise (1), which is explicitly concerned with behavior.

Now, as to premise (2): this would seem much harder to assess. Levin acknowledges the obvious: there are some happy homosexuals, and there are some unhappy heterosexuals. So he puts his claim in terms of general tendencies. But, as Murphy points out, such a claim seems untestable. Why? Because, even if a whole horde of homosexuals were to insist until they were blue in the face that they were happy, Levin would not regard this as a refutation of his claim. He would say either that these people were deluding themselves or that they were simply an exception to the general rule, a rule that holds as a matter of biological and evolutionary necessity. But how then could we put this claim to the test? It would seem that only in a radically restructured society (one that forced large numbers of people to undergo a variety of burdensome and intrusive experiments) could we even begin to test whether any unhappiness that homosexuals suffer from is somehow “inherent” in their homosexuality as opposed to having been “contingently” created by other causes − by social discrimination, for example.

I would also point out that, in his case for premise (2), Levin seems to be trading, without acknowledgment, on two senses of “rewarding” (in other words, he seems to be guilty of equivocating − remember the Brad Pitt example?). We should distinguish between what is rewarding for the human species and what is rewarding for individual members of the species. It may be true that homosexual behavior is not rewarding for the species, in the sense that the species would be in danger of extinction if too many of its members engaged in such behavior. But of course it hardly follows that those members of the species who do engage in such behavior don’t find this behavior rewarding for them, in the sense that it makes them happier.

Premise (3): I have no quarrel with this premise. Notice that it is pretty weak. It doesn’t say that we always have an overall moral obligation to prevent unhappiness when we can. That would be a very strong claim. It would mean that we would have to do much more than we normally do to try, for example, to rid the world of famine (an issue to which we’ll return later in the course). But to say that we have a prima facie moral obligation to prevent suffering is simply to say that we have some reason, morally, to do so, and few would want to deny that.

Now, finally, as to premise (4): here there are many problems to be noted.

First of all, premise (4) presupposes premise (2), which we’ve already seen to be problematic.

Secondly, premise (4) presupposes that we can control our children’s future sexual behavior by way of controlling the development of their sexual orientation. But what evidence is there that we can do this? As far as I can tell, Levin has provided none. Furthermore, as Murphy points out, that we can do this itself presupposes a theory about how sexual orientation develops that is highly contentious. (See p. 195, both columns.)

Thirdly, even if we can mould the sexual orientation of children, premise (4) presupposes that we can do so via sexually discriminatory legislation. Why believe this?

Fourthly, Levin appears to overlook entirely that the enactment and enforcement of such legislation is highly likely to increase the amount of unhappiness of present-day homosexuals, those whose sexual orientation is already established and beyond anyone’s power to alter, for two reasons. First, no one likes to be the victim of such discrimination. Second, to the extent that the legislation succeeds in coercing people not to indulge their sexual desires, it will leave these desires frustrated. It is surely ironic that Levin makes his proposal in the name of “happiness,” when the happiness of future generations that it seeks is highly uncertain and would, moreover, be purchased at the almost certain price of making many people of the present generation very unhappy. (Compare Murphy, p. 195, right column – p. 196, left column.)

It might be pointed out, in response to the last point, that I have overlooked the fact that Levin has only argued for our having a prima facie moral obligation to construct our social environment in the way he describes, and that that is perfectly consistent with our having, due to considerations concerning the unhappiness that would almost certainly be caused by the sort of discriminatory legislation he envisages, a stronger competing prima facie moral obligation not to construct it in this way. Strictly speaking, that is of course true. But if Levin were to accept that there is in fact such an overriding competing obligation, that would deprive his argument of any real force. What point would there be to going to such lengths, only to agree that the sort of legislation he describes ought overall not to be enacted or enforced?

In sum, my assessment of Levin’s article is that it is in many ways interesting and instructive, but that his argument is woefully inadequate.

***Here is a good place to stop and consider Questions 2, 3, 4, and 5 on the Practice Questions for Module 3.***

4. Jordan on hom​osexual marriage

So far we have looked at five arguments concerning homosexual behavior. None of them is obviously sound. On the contrary, each of them faces many problems. Thus the questions whether it is ever overall morally wrong to engage in homosexual behavior or to legislate against such behavior remain open.

It’s important to note that the questions just mentioned are distinct − that it is one thing to ask whether it is ever overall morally wrong to engage in homosexual behavior, but quite another to ask whether it is ever overall morally wrong to legislate against such behavior. I bring this to your attention because it seems that there are many people who think either that the questions are not distinct or, at least, that an answer to the first question automatically provides an answer to the second; for there are many who claim that homosexual behavior ought to be prohibited by law simply because it is morally wrong. Their argument can be put as follows:

Arg. 6: (1) Homosexual behavior is overall morally wrong.
(2) It is overall morally obligatory for the state to prohibit homosexual behavior.

I am sure that you can anticipate what I have to say about this argument, but let me say it anyway: it’s hopeless! First, like Arg. 1 and Arg. 3 above, it’s invalid. Second, it fails to specify the circumstances under which it is supposed to be overall morally wrong to engage in homosexual behavior or overall morally obligatory to prohibit such behavior. Imagine that someone who gives this argument has “all circumstances” in mind in each case. Then, in order to handle the first problem, the argument can be re-cast as follows:

Arg. 7: (1) Homosexual behavior is overall morally wrong under all circumstances.
(2) If a certain form of behavior is overall morally wrong under certain circumstances, then, under all circumstances, it is overall morally obligatory for the state to prohibit people from engaging in such behavior under those circumstances.
(3) Under all circumstances, it is overall morally obligatory for the state to prohibit people from engaging in homosexual behavior under all circumstances.

This argument at least has the virtue of validity, but the truth of its premises is another matter. Although its first premise remains highly controversial, I won’t discuss it further. Instead, let me say something briefly about its second premise.

Suppose that you have made a promise to babysit Sally’s son so that she can attend an important meeting. When the time comes to keep your promise, you are disinclined to do so. You can’t be bothered; you’d rather stay home watching TV. Besides, you don’t much care for Sally’s son. In fact, you don’t much care for Sally herself. So you stay home, and Sally is forced to miss her meeting. Let’s assume that your breaking your promise was overall morally wrong under the circumstances. Should you therefore be liable to legal punishment for your behavior? That seems very doubtful. Your promise to Sally was a private matter and, although it would be perfectly understandable, perhaps justifiable, if Sally were to exact a kind of private punishment (by “unfriending” you on Facebook, say), it would be another matter entirely for the law to intrude itself into your private life. If you agree, then you cannot accept premise (2) of Arg. 7. Thus those who wish to prohibit certain kinds of sexual behavior (whether homosexual or not) by law must do more than simply point to its alleged moral wrongness. It’s surprising (or, sadly, maybe it isn’t) how often this point is overlooked.

two husbands

Let’s turn now from homosexual behavior in general to homosexual marriage in particular. The question that I want us now to consider is whether there is good moral reason for the state to prohibit such marriage. You might think that this question is somehow misguided. Hasn’t the Supreme Court already settled this issue? (In case you missed it: on June 26, 2015 the Court declared, in a 5-4 ruling, that the Constitution requires that same-sex couples be allowed to marry, no matter where in the US they may live.) Answer: no, it most certainly has not. The Court ruled that the Constitution requires that same-sex couples be allowed to marry. Whether this is so or not (a matter that in fact remains very controversial; after all, 4 out of the 9 Justices disagreed), it is an entirely different matter from the question whether morality requires that same-sex couples be allowed to marry. Even if the majority opinion was correct regarding what the law is, the question remains open what the law ought to be. Although their number may be diminishing, very many people appear still to believe that, whether or not the law does prohibit homosexual marriage. it ought to. (This would seem to be what many North Carolinians were thinking when they voted by a 6-4 margin on May 8, 2012 in favor of an amendment to the state constitution that stipulated that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” State law had in fact already banned same-sex marriage. The amendment ruled out not only such marriage but also many other kinds of civil union and domestic partnership.)

So, what reason might be given for thinking that the law ought to prohibit homosexual marriage? Many people might simply respond, “Because such marriage violates God’s commands.” I hope that by now you will recognize that, by itself, that is an inadequate response. Many other people simply say, “Because it’s wrong.” But again, I hope you can see that this answer is highly problematic. First, it’s not sufficiently specific regarding what circumstances are supposed to be at issue. Second, once the circumstances have been specified, the answer would seem simply to amount to premise (2) of Arg. 7, which we have just seen to be very dubious.

Now, to say that “Because it violates God’s commands” and “Because it’s wrong” don’t amount to sufficient justification for prohibiting homosexual marriage by law is certainly not to say that no such justification can be found. Jordan’s article contains a very interesting and challenging argument in favor of maintaining what was then the status quo and prohibiting homosexual marriage. (His article was written at a time when all states in the US prohibited such marriage). Let’s take a look at it. (What follows will be a reconstruction of Jordan’s argument, just as Arg. 5 above was a reconstruction of Levin’s.)

Jordan introduces some semi-technical terms in order to be able to state his case succinctly.

First, by an “impasse” he means a situation in which people hold conflicting beliefs about the moral status of something. Any and all of the moral problems we’ll be discussing in this course constitute impasses in this sense, since all of them concern moral matters about which people disagree.

Second, by a “public dilemma” Jordan means an impasse that has public policy consequences, that is, one regarding which the state needs to adopt some kind of policy. For example, although there is presumably no need for the state to adopt any policy regarding the kind of promise you made and broke to Sally, formal contracts between parties are another matter entirely. It seems clear that the state must adopt some policy regarding the making and breaking of legally recognized contracts.

Third, there are two ways in which a state might try to break an impasse or resolve a dilemma. It may do so by “declaration,” by which Jordan means that the state comes down on one side of the impasse and against the other, thereby giving one party to the dispute everything it wants and the other party nothing. Or the state may resolve the dilemma by “accommodation,” by which Jordan means that it steers some kind of middle course between the two sides of the impasse, giving each side something that it seeks but neither side everything. Accommodation in this sense is a kind of compromise.

***Here is a good place to stop and consider Questions 6 and 7 on the Practice Questions for Module 3.***

Now, how should the state go about trying to resolve public dilemmas? What role should it play? Jordan believes that, unless there are compelling reasons for the state to take sides, it should remain neutral, “above the fray,” not favoring one segment of the population over the other. In other words, it should in general prefer accommodation to declaration. Only when the circumstances are truly extenuating should the state insert itself into the public debate. Sometimes such circumstances do arise (think of the public dilemma that used to exist in this country regarding slavery), but they are exceptional. There is no need to think the current debate about homosexual marriage constitutes such a dilemma. Thus in this case the state should remain neutral and seek a resolution by accommodation.

But how might it do this? Jordan’s answer: by maintaining the status quo regarding homosexual marriage while permitting private homosexual behavior between consenting adults. In this way, compromise is achieved: each side gets something that it seeks but neither side gets everything.

Jordan’s argument for prohibiting same-sex marriage may be put more formally as follows:

Arg. 8: (1) Under any circumstances, if
(a) there is a public dilemma about something,
(b) the state can, by and only by performing some legislative act A, resolve this dilemma by accommodation, and
(c) there is no overriding reason for the state to resolve the dilemma by declaration, then
(d) it is overall morally obligatory for the state to perform A.
(2) Under present circumstances,
(a) there is a public dilemma about homosexual marriage,
(b) the state can, by and only by prohibiting homosexual marriage while permitting private homosexual behavior between consenting adults, resolve this dilemma by accommodation, and
(c) there is no overriding reason for the state to resolve the dilemma by declaration.
(3) Under present circumstances, it is overall morally obligatory for the state to prohibit homosexual marriage while permitting private homosexual behavior between consenting adults.

5. Critical evaluation of Jo​rdan’s article

What makes Jordan’s argument so interesting is that he doesn’t argue for a prohibition of homosexual marriage on the basis of any claim that either homosexual behavior in general or homosexual marriage in particular is morally wrong. He does so on the basis of the claim that there is disagreement about whether one or the other is morally wrong. And, of course, it is clearly the case that such disagreement exists.

An interesting argument is not necessarily a sound argument, though, and there are reasons to think that Jordan’s argument is not sound. (The reasons concern not its validity but the truth-value of its premises. As I hope you can see on inspection, Arg. 8 is valid.) In his article, Boonin gives two objections to Jordan’s argument.

Boonin’s first objection concerns premise (2) of Arg. 8. He claims, in effect, that there are two readings that can be given to clause (2a), namely:

(2) (a1) There is a public dilemma about the acceptability of homosexual marriage in particular.
(2) (a2) There is a public dilemma about the acceptability of homosexual behavior in general.

And then he points out that, on either reading, clause (2b) turns out to be false, so that premise (2) as a whole is false, and thus the argument is unsound. Let’s look into this.

It would seem clear that the most natural way to understand (2a) is in terms of (2a1). But then, Boonin says, (2b) must be rejected. Why? Because then the state’s prohibiting homosexual marriage would not constitute any kind of compromise on this particular issue. That is, as far as the public dilemma about homosexual marriage goes, such prohibition would constitute a resolution by declaration rather than accommodation, since it would give everything to the anti-marriage side and nothing to the pro-marriage side. Not only that, a resolution by accommodation is available. The state could permit homosexual marriage along with heterosexual marriage but make the conditions that must be met for the former more restrictive than those that must be met for the latter. For example, if a person must be at least 16 to obtain a heterosexual marriage license, the state could require a minimum age of, say, 21 for a homosexual marriage license. Or if a heterosexual marriage license costs $50, the state could charge $100 for a homosexual marriage license. Now, Boonin is certainly not advocating any such “compromise.” His point is simply that, if Jordan insists on compromise, then (a) his proposal doesn’t achieve it and (b) there are alternative proposals that do.

Suppose now that we understand (2a) in terms of (2a2). Then, Boonin says, we must once again reject (2b). Why? Because, once again, no compromise has been reached. On the contrary, the state’s permitting private homosexual behavior between consenting adults gives everything to the pro-homosexual side and nothing to the anti-homosexual side, since in this case homosexuals would be treated in exactly the same way as heterosexuals. Thus the resolution in this case would once again be a resolution by declaration. Moreover, once again, a resolution by accommodation is available. The state could permit private homosexual behavior along with private heterosexual behavior but make the conditions that must be met for the former more restrictive than those that must be met for the latter. For example, the state could permit heterosexual adultery but prohibit homosexual adultery. Again, Boonin is certainly not advocating any such “compromise.” His point is simply that, if Jordan insists on compromise, then (a) his proposal doesn’t achieve it and (b) there are alternative proposals that do.

These criticisms by Boonin of Jordan’s argument seem to be directly on target. There is another objection that Boonin gives, and that is that, contrary to what Jordan himself says, Jordan’s kind of argument would, if sound, provide the basis for a parallel argument against mixed-race marriages. Boonin’s objection here can be put in terms of an argument of Type V:

Arg. 9: (1) If Jordan’s argument (i.e., Arg. 8) were sound, then a parallel argument to the effect that under present circumstances it is overall morally obligatory for the state to prohibit mixed-race marriages would also be sound.
(2) Under present circumstances, it is not overall morally obligatory for the state to prohibit mixed-race marriages, and so no argument to that effect could be sound.
(3) Jordan’s argument is not sound.

Note that this argument does not attempt to pinpoint precisely where Jordan’s argument goes wrong. It simply relies on the fact that, just as there is a public dilemma about same-sex marriage, so too is there such a dilemma about mixed-race marriage − and that seems right, since there are indeed people who are opposed to such marriage, while of course there are others who are not opposed to it. Of course, Boonin’s argument also depends on its second premise. I leave it to you to judge whether the argument is sound.

***Here is a good place to stop and consider Question 8 on the Practice Questions for Module 3.***

Even if Boonin’s criticisms of Jordan are successful, remember that that does not mean that we are entitled to reject Jordan’s conclusion. To do that, we must come up with a sound argument against that conclusion. This is not something that Boonin attempts to provide. But others have. One such person is Sullivan. His brief remarks are unfortunately rather opaque, so that any attempt to reconstruct his argument runs the risk of misinterpreting it. Nonetheless, we must try. It seems that he is in fact proposing two arguments against a ban on homosexual marriage. The first, which makes an appeal to “public equality,” might be put as follows:

Arg. 10: (1) It is seriously prima facie morally wrong for the state to fail to afford its citizens equal protection under the law.
(2) If the state prohibits homosexual marriage but permits heterosexual marriage, it fails to afford its citizens equal protection under the law.
(3) It is seriously prima facie morally wrong for the state to prohibit homosexual marriage but permit heterosexual marriage.

What should we make of this? It’s valid, but is it sound? Two points should be noted.

First, although it may seem that premise (1) reflects an important truth and that premise (2) is also quite reasonable, the matter is in fact not at all straightforward. After all, even if we put the particular question of homosexual marriage to one side, the fact is that the law already discriminates in many other ways when it comes to whom it permits and whom it does not permit to marry. As Sullivan acknowledges, minors, siblings, and others are not allowed to marry. Are there good reasons for this? Sullivan thinks so, but should we agree? (Reflect carefully. Concerning siblings, for example, you might be inclined to say that there is clearly good reason to prohibit their marrying one another, since otherwise the risk of birth defects would skyrocket. But hold on. What about marriage between two people both of whom have, say, cystic fibrosis. Should such marriage be prohibited? If not, then the purported reason for prohibiting marriage between siblings would seem specious. And anyway, if it’s birth defects you’re worried about, why not permit marriage between siblings, as long as at least one of them has been sterilized?) Moreover, if there are good reasons for such discrimination, does that mean that those discriminated against are or are not being afforded “equal protection under the law”? Is their “public equality” being respected or not?

Second, the conclusion of Arg. 10 does not flat-out deny the conclusion of Arg. 8, since the latter has to do with what it is overall justifiable for the state to do, whereas the former has merely to do with what it is prima facie justifiable for the state to do. So, even if Arg. 10 is sound, a little more work would be needed to show that Jordan’s conclusion is false. You should reflect on just what, if anything, would do the trick.

Sullivan also seems to give a second argument which can be formulated as follows:

Arg. 11: (1) There is good reason for the state to restrict marriage to heterosexual couples only if there is good reason for the state to restrict marriage to couples that can procreate.
(2) There is no good reason for the state to restrict marriage to couples that can procreate.
(3) There is no good reason for the state to restrict marriage to heterosexual couples.

Again, what should we make of this? You might well agree with premise (2). After all, who would want to deny marriage to infertile couples, for example? But premise (1) is another matter. What if it could somehow be shown that homosexual marriage is harmful (to children, or to the institution of the family, or in some other way)? Would that not constitute good reason to restrict marriage to heterosexual couples? You might say that such a thing cannot be shown. Maybe that’s right, but it’s an empirical issue that deserves investigation. Or you might say that, even if such a thing can be shown, still it wouldn’t constitute a good reason to prohibit homosexual marriage, since the sort of harm in question can and does arise in certain cases of heterosexual marriage, and yet that is not a good reason, or at least not a sufficient reason, to prohibit heterosexual marriage.

I will leave the matter there, but I hope you will reflect on it further.

PHI 121