Wednesday, October 4, 2017

Should religious bakers be able to conscientiously object to making wedding cakes for gay marriages?

One of the main sticking points in the gay marriage debate is the question of how freedom of religion should be protected for devout religious people who do not want to participate in, or personally craft their goods for involvement in, same sex weddings. In this blog post, I want to think through some of the arguments and issues involved in allowing bakers (and florists, etc.) to refuse goods and services to gay weddings, on the basis of a religious conscientious objection.

Normal cases of conscientious objection
Let’s begin by recalling some standard cases of conscientious objection. There are two well-known areas where conscientious objection is specifically allowed in law in many countries. The first case is where a soldier, perhaps one drafted into the war effort, refuses service (especially active combat service) on the basis of a conscientious objection against fighting in the war. The second case occurs where a doctor, usually on the basis of religious beliefs about the sanctity of human life from conception, refuses to take part in performing an abortion.

A few points are worth nothing. First, in the usual cases, the conscientious objector is not objecting to performing an action that implicates them indirectly in some larger activity with which they have moral concerns. Rather, their moral concerns attach directly to the action they themselves are being asked to perform. The soldier is being put in a situation where he might have to actually kill enemy combatants. The doctor is being asked to perform the abortion herself, or to have it performed on her professional authority.
Second, given the convictions of the conscientious objector, the actions in question are very serious moral evils, even mortal sins. Given their beliefs, both objectors would consider the action in question to be the most heinous of crimes – murder.

Third, even when conscientious objection is protected in law, it may still involve the objector playing some role in the performance of a larger activity. The soldier may still be required to play a non-combat role in supporting the war effort. The doctor may still be legally required to let the patient know of the availability of medical options for terminating the pregnancy, and perhaps to refer the patient to another doctor willing to perform the operation.
Do these qualities also appear in the gay marriage issue? Consider civil marriage celebrants who have religious convictions against gay marriage. If such celebrants are allowed to conscientiously object, then the third issue will not really arise, provided there are plenty of other celebrants happy to perform the role. (This condition may not be fulfilled in rural settings.) I am a bit dubious about whether the second condition really applies – as to whether performing the wedding would be a grave moral sin. It is plainly not in the same category as murder. But there is no question that the first condition applies. The civil marriage celebrant is not merely being implicated in the wedding. They are taking part in it and it is happening under their authority. They are – quite literally – performing the wedding. For this reason, it seems to me reasonable enough to create a dedicated category of religious civil celebrants, and allow them to only perform marriages with which they are comfortable. (This policy is already a part of the main legislative proposals being put forward, and I will presume that any legislation following a YES result would include it.)

But what about bakers and florists? In these cases, the above-noted qualities of conscientious objection don’t apply. While bakers and florists may use their creativity and skill to infuse their work, their role is still only one part of the larger marriage ceremony. They create (perhaps bespoke) goods and services for the wedding, but they are at most indirectly implicated in it, and any sentiments expressed in their work are an expression of their customer, and not their own.
Still, while this may show us that use of the term ‘conscientious objection’ is not very apt in this case, that alone does not demonstrate that bakers and florists cannot be allowed to refuse service.

Existing exceptions for religious organizations
Religious institutions like churches, religiously-run schools and religious organizations have many powers to make decisions on the basis of their religious convictions, and to avoid the anti-discrimination laws that a normal business must accept. (This does not allow morally awful types of discrimination, of course, like race-based discrimination.)

But private, profit-seeking organizations like bakeries and florists are unlike officially designated religious organizations in lots of ways. For example, a religious organization’s beliefs and convictions can be known, and publicly expressed, ahead of time. This means that those seeking services need not be subject to rejection and moral posturing by service-providers at the point of sale. It means that those who disagree morally with the religious organization’s stance are free to make their own informed decisions about interacting with it and using its services. And it means that the religious organization’s hypocrisy on any of its standards can be called out.
The situation is very different for individual service-providers, if they are able to pick and choose which customers they serve. Indeed, if at any time they decide to relax their standards (perhaps for a very profitable service), or to change their policy for profit-related motives, there is no mechanism to prevent their doing so. Their decision-making can be entirely arbitrary.

Again, this does not show that bakers and florists should not be entitled to turn away those seeking their services, but it does show why it is quite reasonable to think that religious institutions should be allowed to discriminate, on a consistent and good faith understanding of their convictions, but that ordinary shop-keepers should not.
No easy answers?
One of the things that makes this issue difficult to sort out is that there are obvious cases where it seems wrong – and where it seems right – to refuse service on the basis of personal convictions.

An example where forced complicity in the action is odious would be a Jewish baker asked to bake a cake commemorating Hitler’s birthday for the local white supremacists. Another might be a florist being asked to send valentine’s day wishes and special floral arrangements to a man’s wife – and his girlfriend.
Equally, there are cases where a service- or goods-provider refusing service on the basis of their deeply-held beliefs is plainly awful. Being refused service on the basis of one’s race is the obvious example here. Worse still, if such practices were widespread, then they impact directly on any number of human rights, because of the way most developed countries rely on the market to deliver services and goods that provide substance to our rights.

But a few questions…
There are a few parts of this concern for conscientiously objecting bakers that I find a bit puzzling. These may not manage to show that they should not be protected in law, but I think they do illustrate that the practice is not innocuous from a social and moral point of view.

Why aren’t bakers already refusing other irreligious weddings? (Such as baking wedding cakes for atheists, heretics and fornicators?) In fact, why aren’t their deeply-held religious beliefs appearing in myriad other places in their business practice?

If we can use the examples of Christians for a moment, think of everything Jesus said about the problems with the rich and the need to help the poor. This issue directly impacts on the nature of profit-seeking enterprises and the work they do, and who they do it with. It puzzles me that conscientious objection is suddenly becoming a serious political concern in the context of gay marriage, when – if religiously-based refusal of service really warrants legal protection – we would routinely see it in myriad other economic contexts.

Why is this issue  only being spoken about in terms of small business owners? Surely, if it is to be a legally enshrined right for business-owners to refuse service for religious reasons, then the same considerations will impact on employees (both those serving customers, and those performing the work) and property/venue owners (who may own the building, with the baker leasing the property). These people are just as likely to be religious as anyone else – but what happens when they find that their work or property is being used to provide services with which they harbor deep religious disagreements? Or even if they find that their work or property is being used to refuse services, on grounds they find objectionable on social justice grounds? Will these groups inherit the same entitlements to refuse consent as business-owners? And what happens in the inevitable case where these entitlements clash, and we have disagreements between venue-owners, business-owners, and employees?
I think we are owed a detailed explanation of how religious-based refusals will work in the context of overlapping claims of employers, business-owners, employees, shareholders and property/venue owners, at least in any cases where they can reasonably complain that they are being forced to be complicit in an activity with which they have a good faith disagreement.

In recent months, conservatives have been alarmed at several ways in which conservative advocates and positions are being treated in various arenas, such as cable channels refusing to play political advertisements advocating for the NO vote, or venue owners refusing to allow conservative organizations or speakers to hire their venues. Conservatives have also criticized sporting institutions, professional bodies and large corporations for intruding into politics when they advocate a YES vote. Sometimes, there has even been pressure for conservative/religious corporate executives and others to resign because of activist campaigns against them, and there have been successful campaigns and boycotts against companies on the basis of their non-progressive positions.

There are many different moral concerns implicated in each of these issues – but there is something they have in common: they inject political decision-making into arenas that are usually somewhat quarantined from such partisanship. In some cases, this is not very serious, such as footy teams coming out with a particular stance. But in others, it is very serious, such as campaigns trying to pressure organizations into sacking an employee.
Giving bakers and florists the license to refuse service does much the same thing. If it is okay for bakers to refuse service because they don’t want to be complicit in gay weddings, then surely that gives us good reason to think that cable providers or venue-owners should be entitled to refuse conservatives – and not even on the basis of threats of boycotts, but just because they have conscientious objections to their property and work being enrolled in the service of political positions to which they object.

Ultimately, what is good for bakers will be good for a whole range of industries. If designing, baking and writing the desired words counts as a free speech issue for bakers, then the same argument will apply for advertising platforms, sign-writers, search engines, cable television providers, function rooms, industrial printers, and more. If conservatives think it is wrong, unfair and socially damaging for all of these institutions to refuse services to those using them for conservative practices, then surely the same must be true for bakers and florists acting on the same principle.
‘Civic tolerance’
In making the above-noted complaints against discriminatory decision-making in the market, conservatives (in my view) rightly draw attention to how much we all rely on a level of neutrality from all sorts of service providers to make sure that our rights to services, travel, employment and speech are genuinely realized.

We could express this by appeal to a notion of ‘civic tolerance’. A citizen displays civic tolerance when they say:
“I disagree with your speech, action or practice, and I reserve my right to speak out against it, and to perform different actions in my own life. But I acknowledge that your speech, and your actions, and your practices, are bound to have material requirements, and that you will need various goods and services to perform them. (These may include: A venue to hire for you to speak at. A printing press to print your words. A television channel to play your paid political advertisements. A taxi to take you to your event.) Part of my tolerance of our political differences will be to treat you equally to all my other patrons, clients or customers, when it comes to the performance of my professional or business roles.”
It seems to me that this spirit of civic tolerance is an often-unnoticed and uncredited source of social harmony, equal respect, and the realization of human rights. It is a cultural norm against being a busybody or an extreme partisan, against a world where each of us are judged upon our personal and political views and impeded on that basis, and against a zero-sum vision of society as an endless contest against the other, where every available measure should be employed against those who think differently to undermine their power and silence their voices. Civic tolerance prevents us from being forced to live our lives in identity-based bubbles, where we only interact with people like us, because everyone else will subject us to their moralizing judgments before they decide whether to treat us as ordinary customers or clients. As such, it is a virtue that gives us space and freedom to live our own lives.

If I am right about this, then it turns out that ensuring conscientious objections for bakers is not very conservative at all. In fact, the desire of bakers to interject their own judgments about others’ practices into the provision of goods and services is one symptom of a much larger social movement (at least as prominent on the left as on the right side of politics) that is pressing back against traditional civic norms.
But even if it is morally worrying, does that mean it should be illegal?
If everything I have said here is on the right track, then we should be wary about the increasing practice of those on both sides of politics to inject their religious, moral and political views into ordinary civic, professional and commercial practices (except in the most vivid cases).

But does this mean I have made a case for such actions to be illegal – for the force of law to prevent their occurrence? It does not. To argue that something is immoral or socially damaging is not to show it should be prohibited in law.
But it does, I think, suggest that we should be wary about thinking about gay marriage in exceptional terms. It is not a unique area, walled off from the rest of the world. Countless types of goods and services provide us with the resources we need to act on, and speak about, our values. The provision of many of those goods and services conceivably could be refused by those who do not want to see their work playing a role in practices with which they disagree. If we are worried when this practice is used against those who share our religious or political persuasion, then we should be just as alert when it is used against others with whom we disagree. Having a consistent law that applies across the board ensures that we are not legislating one rule for us, and another for everyone else: a sure sign of injustice.


(This post is one in a series, looking at the arguments in the gay marriage debate.)

Sunday, October 1, 2017

Gay marriage: ‘We should not even be having this debate!’

The argument that political debate on gay marriage is harmful, and should therefore be avoided or at least minimized, has been voiced by a number of those on the YES side, including at the very highest levels of government, and it remains an ongoing feature of the popular public discussion.
These arguments were initially made in the particular context of the conservative side of politics aiming to undertake a plebiscite on gay marriage. And in that context it was true both that the plebiscite was not legally necessary, and that it was a process that was bound to increase the visibility and heat of any ensuing debate. (As it unquestionably has, with ample vitriol, if not violence, on both sides.)

But many of the statements made on this matter – both at the time and since – have a quite general application, in the sense of bringing into question whether it is wrong for us to be having a dedicated public debate about this issue at all. For example, such arguments would apply to making an election issue out of the topic.

No doubt there are cases when the harmfulness of political speech does indeed provide strong reasons for shutting down debate on a topic. Hate speech constraints are a well-known example, and history furnishes no shortage of links between vicious racist speech and ensuing ethnic violence.
Yet any arguments for avoiding public debate on an issue must consider the moral costs of such a policy. In my view, there are deep ethical concerns with the argument that, on the basis of concerns with potential harms, we should avoid having a political debate about issues like gay marriage.

Let’s get clear about the principle at work here
Most often when this assertion is made, it is unclear what the deeper principle is that underlies its specific application in this case. In other words, if the argument against popular political discussion works in this case, then there must be other cases where it will also work, because there is some underlying principle that tells us when and how popular political discussion should be rightly avoided.

My attempt to give a sympathetic account of the underlying principle is as follows:
In cases where experts agree that popular discussion of a particular political issue will be damaging to a particular class of vulnerable people, we have a strong reason to avoid that debate.
Now I need to stress that this is just my attempt to portray the general principle. A YES proponent might actually have something subtler in mind. But this principle will give us something to start with, and may help us devise an improved one in due course.

Some questions. Actually, lots of questions.
If something like the above principle is meant to justify calls to avoid debate, then an array of serious moral questions arise.

Question 1: How strong is this ‘strong reason’?
It’s pretty straightforward that the above considerations do create at least some reason to avoid a public debate, in the sense of not starting one unnecessarily. If there is widespread support for a policy across all major parties, or if a government that announced the policy as part of their election promises, and then was voted into power with a sufficient majority to legislate that policy, then it makes no sense to start up a debate that would carry serious costs, and with little benefit. The legislation should just be completed in a quick and expeditious matter.

But it is very different to say the reasons are strong enough to actively discourage a public debate that is already occurring – or to say that we should avoid discussion on an issue where there are large-scale (and passionately held) divisions across the voting population, for example, in a case where polls indicate that about a third of the population disagrees with the majority opinion.
Question 2: Who are the experts on whether harms will occur?

The principle above, if it were to be rigorously followed, would place an awfully large amount of political power in the hands of the ‘experts’ who make judgments about the harms involved. After all, they will be effectively empowered to decide which issues are to be quarantined from normal democratic deliberation.

Presumably these experts will be professionals (like psychologists or psychiatrists), or academics with the relevant specialities. Naturally, most of what these experts say would be accurate and evidence-based. But universities and professions are subject to the same frailties (moral and cognitive) as every human institution – especially once that institution is granted political power. I do not think one needs to be excessively cynical about human behaviour to think that there are serious worries with this arrangement. Whether or not power corrupts, there can be little doubt that it attracts the corrupt.

Question 3: Who are the experts who decide who will count as vulnerable?

The same concerns will arise for the question of who gets to count as vulnerable – and who gets to make that assessment. But the situation here is worse than with the prior question. In this case, the questions are less about strict sciences like psychology, and more about evaluations about the moral significance of different sorts of vulnerability. Apart from some really obvious cases, this is something that different political philosophies are bound to see differently. (Consider: do all vulnerabilities count? What if it turns out that some white supremacists are extremely defensive and emotionally vulnerable? Should we care? Or not?)

Furthermore, some philosophies may even wonder why we should focus on vulnerable people at all. Maybe all speech that can have significant harms should be discouraged and avoided – even if those harms would befall people who are not otherwise considered vulnerable, such as people who agree with the majority position on an issue. But making this modification to the above principle would greatly expand its application, placing even more power in the hands of experts.

Question 4: Is this a special case?
Perhaps it might be responded that it is okay to avoid debate in the special cases where the issue is a morally straightforward one, about which no reasonable person can really have any qualms or questions. But as I am hoping to show with this blog series, on the issue of gay marriage, there are certainly concerns that a reasonable person may at least want to raise, and get considered on the merits. Now I think that considering these arguments on the merits gives us very powerful reasons to legislate in favour of gay marriage. But that is a claim about the end results of a critical discussion. It is very different from the claim that we do not even need a critical discussion.

Perhaps instead it might be objected that we do not need public discussion in the special cases when the issue is really just a question of equality before the law, and of fundamental human rights. But there may in fact be arguments – such as the ones I have already made this blog series – that (at least initially) challenge whether the issue really is one of equality and fundamental rights. Shutting down the debate on these issues will shut down any possibility of debate on whether this is an issue on which we should in fact be shutting down debate. In other words, following this debate-avoiding principle on an issue also shuts down the meta-debate about whether this is an issue that should be subject to the principle.
Moreover, even if the issue is unquestionably about fundamental rights and equalities, that doesn’t necessarily tell us whether other important rights and freedoms are implicated in the policy change, and how these should be managed, and what compromises might need to be implemented. Again, we would need public debate to think through, and sort out, these issues.

Question 5: Why aren’t other things done to avoid the potential harms?
Suppose it was beyond dispute that an aggressive, divisive political dispute on a given issue would create substantial harms on vulnerable people. It may also be true that this result could be avoided by paying attention to other parts of the social context and political situation. For example, if one wanted to improve the tone of political discussion in order to bring down the level of divisive heat and anger, then political parties and activist groups could make either bilateral or even unilateral commitments to improve their own behaviour in such discussions. They could try to live up – with self-restraint, discipline and dignity – to a code of conduct that eschews any use of language the other side might find derogatory, and that tries to listen and respond carefully to other’s viewpoints. Events could be organized with like-minded discussants from the other side of the debate, where polite, reasonable and adult discussion could be exemplified. 

No doubt this sounds fanciful, and it is probably impossible to imagine parliamentary question time in Australia without our political leaders booing and hooting at each other like unruly children. But the underlying point remains true. A whole array of social behaviours and practices lead to any given social outcome. To say that A leads to B may be true. But it may also be true that A only leads to B in the context of background social conditions X, Y and Z. And it may be that if we really cared about B, and thought that B was an outcome of over-riding importance that we needed to avoid, then we should be bringing X, Y and Z into the discussion as well. (If that means we have to impose kindergarten-level codes of conduct on our political leaders when they engage in formal debate, then so be it, I say.)

Question 6: How are decisions to be made if they are not to be publicly discussed?
This is perhaps the most significant query. Once the experts have had their say about what counts as a harm, and what counts as a vulnerable person, and everyone has agreed that having a discussion would be too costly (or maybe this judgment is also made by the experts?), how on earth is the actual decision to be made? It cannot be to simply make no decision, and to leave things as they are, because, a) leaving things as they are itself constitutes making a decision, and, b) the entire point of the YES argument in this context is to change the existing law.

Perhaps the idea is that the decision-making will still occur by the parliament or the reigning political party, but without any significant public discussion. But I struggle to believe that anyone would accept this line of argument unless they knew they already had the numbers at the time they voiced it. It is also perplexing why we should solve the issue by appeal to elected leaders, given that a key part of the justification for respecting democracy is – at minimum – that the voters have been sufficiently informed about the leaders’ political views on the relevant issues. More thoroughgoing justifications for democracy can even include appeals to public deliberation itself – exactly the property that the above principle aims to shut down.

The key point here is that the arguments for shutting down public discussion look – on their face at least – to be profoundly undemocratic, and therefore to have serious implications in terms of procedural justice, public accountability, the legitimacy of law, and the human rights of communities to political participation and self-determination.

To be sure, the above arguments are not definitive, and it may be that a principle can be fashioned that avoids these moral concerns, and that shows that decision-making on the gay marriage issue (and other similar issues) should be protected from popular political discussion. But I submit that this argument has not been made. Until it is, I think it is premature to assert that this is a discussion we should not even be having.

(This post is one in a series, looking at the arguments in the gay marriage debate.)

Saturday, September 30, 2017

Slippery slopes in the gay marriage debate

One of the increasingly common concerns voiced in the gay marriage debate is one of unintended consequences and – in particular – slippery slopes. The thrust of slippery slope arguments is that a policy change (that may seem okay if it is just considered in isolation) will actually lead over time to a dire situation, and that it will be difficult for us to prevent this slide into catastrophe.

We often hear commentators scoffing at these arguments, as if they were nothing more than a sneaky rhetorical ploy. And sometimes it is true that an appeal to a slippery slope argument is the last resort of a debater who has becoming convinced that the argument cannot be won on its merits alone.

But the fact remains that there is nothing intrinsically wrong with these arguments. Slippery slope arguments can be true, valid and even decisive. Public policies do have unintended consequences in the short term, and can lead to situations that are not easy to avoid or undo. To find out whether a given slippery slope argument is fallacious, it must be analysed on the merits.

In this post, I intend to do just that, and to consider the merits of the slippery slope argument, and its application in the context of gay marriage.

The slippery slope argument
Making a slippery slope argument involves justifying three separate premises.
  1. Having made this policy change, further changes will subsequently occur, perhaps with or without explicit political decision-making or electoral control;
  2. It will be difficult to stop those changes, or reverse the policy, at a later point.
  3. These further changes will lead to a dire situation.
If these three premises can be vindicated, then the slippery slope argument is both valid and sound.

The ‘dire situation’
Sometimes it turns out that the slippery slope argument falters at Premise 3. A social change may gradually occur whereby the ‘dire situation’ – from the new perspective, caused in part by the original change – actually doesn’t look so bad after all.

It is true that this can sometimes be a worry, and that new practices may normalize behaviour that should have remained morally concerning. But there are countless examples where the reverse turns out to be true, and when society plainly improves because of what it has learned and re-thought on the basis of the initial policy change.
For example, when the rights of man were first declared in America and France in the eighteenth century, some wondered where such declarations might lead – Votes for the poor? Votes for those in minority religions? Votes for colonized people? Votes for women? Those who warned of the slippery slope to universal suffrage (voting rights for all adults) turned out to be absolutely right. The more that the franchise was extended to responsible, rational adults, the more it seemed reasonable and fair to extend it to the remaining groups of responsible, rational adults.

In this case, even though the slippery slope warnings turned out to be true, nowadays the idea of universal suffrage is a consensus moral position, held across the political spectrum. Having arrived at the ‘dire situation’, the entire citizenry has decided that not only is the situation not dire at all – but it is a very good thing, and indeed something of a profound achievement by our civilization.
Why won’t we be able to stop at a sensible place?
Premise 2 is usually where the argument is at its weakest. If the slippery slope argument is to convince people who would otherwise allow the policy change to happen, then it needs to function in a context where, a) many would agree that the change itself is okay, but, b) they are deeply worried about the prospect of the dire situation.

But if that really is the case, then it is hard to see why this very fact will not make it possible to stop the changes at an appropriate point in the future. This is why most slippery slope arguments made in the context of democratic decision-making are seriously flawed. If there is a sizable amount of the voting population that is happy about the current policy change, but is worried about the dire situation, then why can’t electoral pressure be used to draw a line at the point where the majority of the electorate believe things have gone too far?

In some cases, the proponent of the slippery slope argument may have something very important to say here. They may be able to point out that the policy change actually shifts the manner in which future political decisions will be made, or that the policy change will shift enormous amounts of power (political power, media power, social power or – in the scariest situation – raw military power) in such a way as to dramatically alter whether it will be possible to slow, stop or reverse course in the future.
Consider a policy change that redraws voting districts, where any future decisions about this issue would be made by leaders elected on the basis of those new districts. In this case, the policy change in question alters the context in which future decision-making takes place, making future changes more likely, even as they make it harder for an opposition group to get into power and reverse course.

Another example would be a practice of appeasement against a military aggressor – where by the time it becomes clear that the military aggressor cannot be appeased, the opportunity to prevent their consolidation of power has been lost.
This does mean that slippery slope arguments are always sound in these contexts – but it does mean they should be taken very seriously.

However, I submit that the vote to give same sex couples the power to legally wed is not analogous to these sorts of examples. It does not mark a shift in the nature of political decision-making in any way that will make it difficult for future majorities to respond to policy changes happening in other areas, such as in education, or with respect to free speech or freedom of religion. In each of these cases, and on each of these issues, electoral majorities have proved to be pretty good at getting their way in the end. They have political representation, access to a free press, the capability to mount social media campaigns, and so on.
In other words, I agree it is possible that the change in allowing same sex marriage will have some undesirable future consequences in some context or other. This is true of gay marriage, because it is true of absolutely all changes in law – and indeed of all decisions not to change the law when the social/political/economic context is itself changing. Unintended consequences are just a brute fact about human societies and social decision-making.

However, the legal change to empower same-sex marriage will not alter the ways in which future electorates will be able to give effect to their views about what is, and what is not, socially desirable. If undesirable policies do arise in terms of future education, free speech or freedom of religion, then the electorate will be in a position to do something about it.

For this reason, I think we have good reason to reject slippery slope arguments on this matter, at least and until a persuasive case can be given that shows specifically how the three above-noted premises (and Premise 2 in particular) can be justified.
One final problem with slippery slope arguments
One final concern with slippery slope arguments may not be that they are false or untrue. To the contrary, they may be valid and sound – but still not be sufficient to sway our decision-making on the matter. Howso?

Simply, the slippery slope argument does not make the case for the original issue go away. It just adds an extra consideration to the mix. Even if valid, there is no guarantee that the risks of the slippery slope are morally more important than the initial policy change itself.

So there are two reasons debaters dislike slippery slope arguments being used by their opponents. One is because it can take a lot of time to work through all the new factual and moral claims that would be required to vindicate (or rebut) the slippery slope argument. And in most cases, the result is unlikely to be anything more definitive than assessing the balancing of probabilities one way or the other.
But the other reason slippery slope arguments are problematic is that they distract attention from the central issue at hand. It is one thing to demand that decision-makers pay heed to potential knock-on consequences and other risks. But it is another for those concerns to so dominate the discussion that people wind up somehow forgetting that the law will also have direct and immediate consequences.

In this case, the main, direct effect of the law is that it will empower a certain group of couples in committed and loving relations to formalize and celebrate their love and commitment in just the same way as other couples in their society do. That is the one change we can absolutely guarantee will happen. While it is worth taking slippery slope arguments seriously enough to consider them on the merits, it is never worth losing sight of the actual direct change that will occur, and the justice and legitimacy that may reside in that change.

(This post is one in a series, looking at the arguments in the gay marriage debate.)  

Friday, September 29, 2017

Religious convictions and gay marriage law: Two issues, not one

Should a religious conviction be a good reason for voting one way, rather than another?
In the gay marriage debate, we often here refrains like: “As a devoted Christian (or person of faith), I believe that marriage is between a man and a woman, and so I oppose same-sex marriage”. Such statements can make it seem that particularly devout religious people have special reason to vote NO, once they ascertain that their scriptural and religious authorities dictate that marriage is between a man and a woman.

But this misses the point that there are at least two issues of moral and religious conviction in play here, not one.

What does my religion say about marriage and homosexuality?
The first question is the obvious one that springs to mind. Presuming for the sake of argument that I am a religious devotee, I will of course want to enquire into what my religion (and my interpretation and understanding of that religion) says about marriage in general, and homosexuality in particular.

Now I am not a theologian, or any sort of expert on scripture, religious authority (like the papacy) or religious interpretation. So for our purposes here, let’s simply accept that I (as a devoted religious citizen) can – on the basis of a reasonable interpretation of my religion’s commandments – decide that my religion forbids same-sex marriage.

This decision about what religious authority requires will have obvious implications for my own actions. For one thing, it will impact powerfully upon what I will do in my own personal life. Obviously, I will have strong reason to not get married to a same-sex partner. Also, I will probably want to encourage my friends, and educate my children, to follow the same religious convictions.

As well as these ramifications for my own personal behaviour, my religious convictions will also have political relevance. Most importantly, I will not want the law to prevent me having these convictions, speaking about them, and acting upon them. That is, I will want to protect my freedom of religion to follow the dictates of my God and my tradition. This does not mean that 'anything goes' in terms of how I can treat others, but it certainly does provide an important reason for me to ensure the law provides room for me to act upon my religion’s commandments in my own personal life. (In a later post, we will talk about the implications here for conscientious objection.)

What does my religion say about the relationship between religion and law?
There is another, further way my religious convictions might turn out to have political implications. Having decided that my religion says that marriage is between a man and a woman, I might vote in order to ensure that this understanding of marriage is reflected in law.

This is a very different application of my religious views. Why? Because in this case, I am no longer using my faith to determine how I will live my life, but using my faith to determine how others will live their lives. The religious articles of faith I possess are now impacting on the law that coercively governs all citizens, including those of different sects, different religions, and the un-religious.
While in my personal life, I could move more or less immediately from an evaluation about my religion’s requirements to a decision about how I should act, in the case of democratic voting, the move is not straightforward.

The reason this move is not straightforward is that my religion, and my commitments to my religion, may also give rise to powerful reasons to resist imposing my religious views on others through the force of law.

Three considerations about the relationship between religion and law
There are three types of reasons my religion might give me pause before I vote on the basis of my religious convictions.

The separation of church and state
The first reason is that my religion might itself declare that there should be a gap between church and state, and that the former should govern our personal, spiritual lives, and that the latter – in having charge of our social and interpersonal lives – should be based upon secular (or at least non-sectarian) principles. Consider, in this light, Jesus’ command to, “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” Now of course it goes without saying that all religious quotes are subject to varying interpretations, but I think it is fair to say that at least one sensible interpretation of this saying is that there is an important distinction between the temporal and the spiritual spheres, and that our political decisions may rightly include consideration of temporal factors and issues that we do not need to consider in our personal and spiritual affairs.

It should be pretty clear that if there is to be a distinction between church and state, then this cannot be realized if we live in a democracy where everyone votes simply as if their own religion’s dictates should apply to everyone. If there are enough voting Catholics to take control of both the upper and lower houses of parliament, then (in such a world) the entire society can be required to eat fish on Fridays, to criminalize homosexuality, to be punished for blasphemy, and all the rest. The distinction between church and state will exist in name only. The fact that this doesn’t happen (even in cases where religions command a strong majority) is because many religious people acknowledge a distinction between the temporal and spiritual fields.

Tolerance and social peace
The second type of reason is that my religion may say things about tolerance, and about social harmony, that give me pause before imposing my views upon others. If my religion says that other views should be respected, and that non-religious people should be persuaded, and not forced, into religious practice, then this will affect the way I vote on such matters. Similarly, my religion might speak a lot about the importance of social harmony and peacefulness. If I think that forcing other people into religious practices they do not themselves accept is a sure recipe for internecine divisions and sectarian conflict, then this will shape how I contribute to political decision-making on the basis of my religious convictions.

These were the sorts of lines of reasonings that led John Locke – the 17th Century political philosopher and devout Protestant – to mount some of history’s most powerful and influential arguments for religious tolerance in his Letter Concerning Toleration. Locke did not laud religious toleration, and a separation of church and state, despite his religious convictions – he did it because of his religious convictions.

The right to freedom of religion
The third type of reason recalls the importance (mentioned above) of my being able to act on the basis of my own religious convictions – and therefore of my right to freedom of religion. When my own co-religionists are in the majority in a democracy, I might not perceive any tension between my religious liberties and the practices the majority enshrines in law. But demographic shifts are possible, and so too are changes in people’s religious convictions. If the majority comes to hold a different religious view to mine, then I might suddenly perceive a very powerful tension between democratically made law and my own religious liberties.

For this reason, in order to protect my (and my family’s) religious freedoms, I might be better placed in trying to ensure that no-one’s particular religious views can be enshrined in the law. True, I lose the benefit of seeing others conform to my religion’s view about proper practices. But if I am (and those who think like me are) successful in safeguarding all citizens’ freedom from having religious practices and institutions imposed upon them, then I guarantee my own religious freedoms even in a future scenario where another group commands a democratic majority. The constraint imposed upon me when my group held a majority opinion becomes a freedom granted to me when I hold a different view. That, after all, is how rights work.

What should we conclude?
I am not here providing any sort of definitive moral (much less religious) case that these three types of reasons are decisive in the gay marriage debate. Whether that will be true or not depends on the specific religion in question.

What I am arguing is that a religious devotee deciding about how to vote on gay marriage is – by the very nature of that vote – coming to a stand on all of these three types of reasons. For devoutly religious people, simply considering what the religion says about gay marriage is far too narrow an engagement with their religious scriptures and authorities. It is also essential to consider what the religion says about the relationship between church and state, what the religion says about tolerance and social harmony, and what the religious community thinks about the importance of protecting rights of freedom of religion.
So when providing a full justification or explanation of how they voted, religious devotees should appeal not only to the passages in the scriptures that set down the church’s stance on marriage and homosexuality – but also to appeal to what the religion says about these three further and very significant factors.
None of this should be very surprising

In other contexts, the types of reasons I have been discussing here are routinely accepted by devoutly religious people. Religious devotees may well possess deeply-held and unshakable convictions about proper eating, clothing, cleanliness, sexuality, worship, charitable giving, and so on. But they do not suppose that, on the basis of these views, they should agitate and vote for laws that will bind those people who do not share their religion. They allow others outside their religion to legally do things that are sinful according to their revealed law. These sinful but non-criminal acts would include, for example, pre-marital and extra-marital sex, use of contraception, atheism, apostasy, blasphemy and so on and on.

In many respects, for all these above-noted sins, it just seems common-sense to think that the law should not follow the idiosyncratic dictates of a particular religion. But for some reason, religious devotees, and even religious authorities, seem not to apply the same sorts of considerations about political and legal decision-making to the issue of gay marriage.

My aim has not been to show that it is wrong to incorporate religious thinking into one’s political decision-making. In fact, I have been arguing the very reverse. I have suggested that it is wrong to apply only a superficial and narrow engagement with one’s religion into political decision-making. In decisions that affect other people, and the laws that govern them, many different religious-based considerations matter, and warrant careful reflection.

(This post is one in a series, looking at the arguments in the gay marriage debate.)

Gay marriage is (and isn’t) all about equality

It’s sometimes said by those in favour of gay marriage (i.e., those advocating for a YES vote in the plebiscite), that the question of gay marriage is essentially just a question of equality. This is why the term marriage equality is often preferred as a description of the issue. In this post, I want to explore this claim a little.


To this end, imagine a society where marriage is all about the creation of a family. Couples (of any gender combination) can partner up formally in civil partnerships, and hold equal rights in law on that basis. But this institution of civil partnership is not understood, in law or in social sentiment, as marriage. To the contrary, in this society, marriage is all about having children. Strong religious and social pressures link marriage to creating and raising children. Marriage ceremonies focus on this purpose, and this commitment. Marriage vows valorise the intention to have children, and to raise them in a stable family environment. We might even imagine that this commitment is reflected in law, and that where it is known that one partner in a couple is completely infertile, that couple cannot be married. Similarly, married couples who do not have children within a given period of time might have their marriages automatically dissolved. Romantic love and friendship between the two partners are acknowledged to be important ingredients in the mix, but without the intention and wherewithal to produce and raise children, there is simply no marriage. 
In this society, the essence of marriage centres on the biological creation and nurturing of children in a family. That is the institution’s socially and legally determined purpose. To be sure, there may be cases at the margins that do not perfectly meet this understanding. But overall, across the society, marriage is intrinsically linked to two people coming together to create a child, and then to nurture it and support it into adulthood.

It seems to me pretty clear that, in this imagined land, the question of gay marriage would not be a mere question of equality. The institution’s role and purpose is to promote unions that create and nurture children. It is therefore not arbitrary or discriminatory to make the institution apply only to those capable of doing so.
This does not necessarily mean that this society should not legalize gay marriage. There may be excellent reasons for it to do so. But if the society does legalize gay marriage, it would thereby expand and change its understanding of marriage. This change, for example, might be to an understanding of marriage as applying to any couple that was planning to raise a child (even if the child is not the biological creation of both parents). The decision to make this change would not be based on the moral demand for equal treatment, but instead would be a question of the society rethinking and revising its shared understanding of marriage.

Meaning and equality
The point that I think this little thought experiment shows is that the question of gay marriage is not purely about equality. The question is also a question about the meaning of marriage. If marriage is essentially linked to the biological creation of children from both parents, then it is not a violation of equality to deny that institution to gay couples. To the contrary, they would be denied entry on the basis of the purpose of the institution, in just the same ways that elderly couples, very young couples and infertile couples would be similarly denied entry.

So when YES proponents say that the question of gay marriage is simply a question of equality, as if we were only talking about equal legal standing under the rule of law, it seems to me that their argument is too swift. The prior question is also one of what the meaning of marriage is, or should be. Only once we have settled that question, can we understand whether it is arbitrary or discriminatory to exclude some people or partnerships from the institution.
Another thought experiment…

With this in mind, consider another society. In this society, there is a different meaning given to marriage. Marriage centres on love and commitment to one’s partner – specifically, it is about romantic love between two people, forsaking all others. In this society, while some couples marry in the explicit expectation of eventually having children, many marrying couples have no such expectation – and nor does the society (through either law or custom) pressure them into having children. Simply, the question of having children is independent of marriage. People can have children out of wedlock, and can be married without ever having, or wanting to have, children. In this society, when couples share marriage vows, those vows speak about their relationship and their feelings of love, care and support for each other. Their vows may not even mention the prospect of children. And when you look up the word ‘marriage’ in the dictionary, it talks about a partnership between a couple, or other tightly coupled unions, and doesn’t mention anything about children or procreation.
Suppose in this society, that the question of gay marriage arose, and that it was plain to everybody (as a social-psychological fact, established on the basis of empirical evidence) that gay couples can love each other, and be committed to each other, in all the same ways as heterosexual couples. In this case, to exclude gay people from the institution would be a violation of equality. In the first society, gay people (like all others who did not, or were not able, to have children) were excluded because of the very nature of the institution, which was all about having children. In the second society, gay people are excluded despite the nature of the institution, which was all about love and commitment to a partner.

Now I’m sure you can see where this is going. Our society, in twenty-first century Australia, is plainly much more like the second society than the first one. The intention and capacity to have children is not an essential part of the social understanding, or the legal reality, of marriage. But the presence of love between two partners, and their commitment to each other, lies at the absolute centre of our current understanding of marriage.

For this reason, it seems to me that to deny marriage to gay people in our society really is, at the end of the day, a failure of equal treatment.
An important objection

An objection can be raised here. A NO proponent could object to this line of argument by saying, “Okay, I accept that the widespread social and legal reality of marriage in twenty-first century Australia is essentially about love and commitment between two people, and not essentially about having and raising children. But I think this is an unfortunate result, and that our society would be better off with an understanding and legal definition of marriage that is all about having and raising children. So when I vote NO, I am voting for that, more traditional and family-focused, understanding of marriage.”

I have some sympathy with this counter-argument, in the sense that many conservatives may well have been despairing over the changes to the social meaning of marriage occurring over the last couple of centuries – changes they may have disagreed with and would have done everything in their power to prevent. For this reason, it may feel for such conservatives that voting NO in the plebiscite is consistent with their long-cherished and deeply-held views.
However, there is a fundamental problem with this counterargument. It is simply this: The plebiscite does not have the power to change the meaning of marriage, and to change it to a biological-children-based meaning. In fact, it is hard to see any social and legal forces that could effect this change in the present environment. To install that vision of marriage would require an enormous raft of legislative changes – ones that would disrupt and exclude countless existing (childless) marriages.

And even if those changes in law were made, it is doubtful that social sentiment on the issue would shift. This is a point that conservatives usually understand very well - that it is enormously difficult for top-down legislative activity to change entrenched social beliefs and values. As I see it, a YES result would take the existing social understanding (and dictionary meaning) of marriage, and remove the legal impediment to that concept applying in law to gay couples. But the NO result would not change the existing social understanding of the term (as nothing can do that).

To explain: Regardless of what happens in the plebiscite, the dictionary will still say that marriage is a union between two people, couples’ wedding vows will still extol their love for one another, the law will still focus on couples’ commitments to one another (and not their commitments to having children), Shakespearean romances and contemporary love stories will end in celebrations of marriage, unmarried couples will still have children, married couples will still decide not to, and so on, and on. There is nothing in the plebiscite that will change any of this.

What this means is that the Australian people are not being asked whether marriage should be an institution that is essentially linked to biological procreation. Instead, they are being asked whether the existing institution of marriage – as a union in love and commitment of two people – should be extended to gay couples. And if we accept that gay people can love, and be committed to, their partners just as much as heterosexual couples, then it really looks like an arbitrary exclusion to say that they should be excluded.
So I think it is understandable that, in voting NO, a conservative voter may hope to express their aspirations for another, perhaps long-past vision of traditional marriage. But the reality is that even if the NO vote prevails, that traditional vision of marriage (one that did not arbitrarily exclude gay couples) will not be re-instated. A NO result would leave us with the exact same social understanding of marriage we currently have, as a union of love and commitment. All it would accomplish is to continue the exclusion of gay couples from that institution. And because the institution remains about love and commitment (and not about having children), it would be an arbitrary discrimination to exclude gay couples from that institution.

In the end, then, in our country – but perhaps not in all others, at all times – gay marriage is a matter of equality.
And the same point may be made about religious marriage…

The same argument applies for marriage as a religious institution. If the definition, social understanding, and legal reality of marriage was essentially linked with a given religion (or, perhaps, with religion in general), then it would not be a vote for inequality to keep marriage occurring wholly within the dictates of that religion. The meaning of marriage would be religious, and marriage would naturally exclude unions operating outside the meaning the religion gives to marriage. If the religion said that gay people, heretics and atheists could not be joined together under God, then gay people, heretics and atheists could not be joined together under God. (Whether the law should follow the religion on this matter, or just leave the issue entirely outside the realm of the law, would be a further question - one about the proper relation between church and state.)

But, again, this marriage-as-essentially-religious does not reflect the reality of twenty-first century Australia, where atheists, agonistics, apostates, heretics, fornicators, blasphemers and all the rest are completely free to marry. And, again, the plebiscite will not and cannot change marriage to being religious in this way.
As a result, in this case as in the above case, a NO result would not serve to make marriage religious – it would only serve to exclude gay people from the existing institution of marriage.


Summing up, I think conservatives are quite right to draw attention to issues about the meaning of marriage, and to note that this is a prior question to the issue of equality under the law. But it seems to me that conservatives ought to go on to reflect on something that conservatives are usually very alert to: the ways that law can and cannot impact upon long-held social understandings. Simply, there is no way that this plebiscite (or any law) could budge the widespread and long-established belief that marriage is all about love, commitment and a union between partners. Nothing will change that. So the only question is whether the existing understanding of marriage should apply to all those who exhibit the relevant qualities - of love and commitment to one another.

And that is just a question of equality.

(This blogpost is the first in a series on the moral arguments in gay marriage.)