The reason I went for a utilitarian argument on this occasion is that it seems to me to so clear-cut: it puts the onus on opponents of gay marriage to explain what dreadful thing it is that they think will happen because of gay couples getting married.

And if empirical research discovers that society as a whole is better off without gay marriage rights? Well, it’s hard to engage with that argument in the abstract because it’s hard to imagine what the evidence could be. If the negative impact was serious enough — let’s say gay marriage resulted in god sending plagues, earthquakes and armies of avenging angels — I suppose I might have to reluctantly stop supporting it. Even if I thought god was being a bit of a dick.

And I do think there is also an equality argument, I just don’t think it’s quite as simple as it is sometimes being presented. I could happily make an argument for gay marriage on the basis of fairness and equality, it’s just that to be rigorous about it would require some fairly careful unpicking of what we think marriage is, what we think it’s for, what the state’s place is in people’s relationships and so on.

On natural rights and the Declaration: I’m not sure I can see a distinction between a ‘natural and imprescriptible right’ and an unalienable right which is endowed by a Creator. If they didn’t want to imply something like ‘natural’ rights, they could have said ‘we hold these truths to be self evident: that all men should have certain inviolable rights granted to them by law’.

And finally, I do think there would be a virtue in making the idea of liberty more explicit in the Constitution: that there should be a presumption that people are free to do whatever they want, as long as it doesn’t hurt anyone else. I don’t know how much it applies in the case of gay marriage, though, because it isn’t an aspiration for freedom from interference by the state or other people; it’s an attempt to directly engage the apparatus of the state in your personal relationships. Legalising homosexuality in the first place is a straightforwardly libertarian argument: people’s private relationships are no-one else’s business. Getting the state to recognise homosexual marriages and grant them identical legal status to straight marriages seems to me to require a slightly different kind of argument. It’s an attempt to gain legal rights rather than legal freedoms, surely?

Jee Leong

You raise an interesting question. Your reasons for supporting gay marriage are utilitarian in basis, as confirmed by your reference to Bentham: greatest happiness of the greatest number of people. I am not sure if utilitarian arguments suffice. What if empirical research somehow “discovers” that society as a whole is better off if gay people are denied marriage rights? We would have to look at how society is better off, and that inevitably entails some idea (or human construct) of social good. And even if we all agree on what constitutes social good, there is still the ethical question of punishing a minority for the greater good. I am no political philosopher but I think some version of rights has to supplement any utilitarian arguments. In other words, some version of what is due to each member of society, no matter how weak in strength or small in number. Otherwise, utilitarianism supports tyranny of the majority. I am sure Bentham must have some answer for this, but I don’t know it.

I agree that “natural rights” is flawed or vague phrasing. The US Declaration does not use that phrase. Instead it says: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights . . . .” I think, like Jill, that we should attend to “We hold” in the statement. Like you pointed out, Jefferson must know that these truths are not self-evident in history, but “We hold” is a statement of belief, of radical belief (not radical enough since it does not include enslaved people etc). Read this way, the meaning of “self-evident” becomes more like that of “incontrovertible,” or “of first principles” or “basic assumptions,” the very human construct you rightly argued all ideas about rights are.

You said that the business of deriving a political philosophy from first principles is highly dubious. The US Declaration starts that way, but very quickly also presents “the facts” about England’s tyranny over its colonies. In other words, it combines first principles with (what may be called) an empirical approach; inductive as well as deductive reasoning undergird its rhetoric. That makes for good rhetoric, though I am inclined towards Karl Popper’s view (critical dualism), that we cannot derive values from facts. Arguments about values (human construct, ideas of social good etc) must be conducted in the realm of values. The debate about gay marriage cannot be resolved by reaching for (changeable, context-dependent, value-laden) facts.

I do wonder if that debate would favor gay marriage more, if we add the idea of liberty to the idea of rights. J. S. Mill’s version of liberty: each of us knows best what constitutes our own greatest happiness, and therefore should be free to pursue it our own way, provided we do not increase harm or lessen benefit to others. This idea (did Mill get it from the Americans?) chimes with American individualism, that everyone should be left alone to get on with his thing, so long as it does not bother me.

Thanks for making me think through this a little more.

Jee Leong

Odd. I paid more attention to the “we” part of that first sentence: We, the radical whackjobs of our era, hold these truths to be self-evident, not because they actually are, but because we want to make our case and we’re pretty pleased at how elegant it sounds.

Perhaps it’s best understood as something like “we believe these truths should be self-evident”. I expect Jefferson sincerely believed that all men were created equal — all white men, anyway — and wanted others to believe the same thing. But the whole business of trying to derive a political philosophy from first principles is dubious.