A couple weeks ago, my fraternity brother and friend, Blake Rustmann authored a blog titled “On Marriage” articulating his disapproval of non-heterosexuality, dissatisfaction with the state of marriage today, and opposition to U.S. District Judge Terrence Kern’s recent decision to declare Oklahoma’s ban of non-heterosexual marriage—Oklahoma Question 711—unconstitutional. In response, I took it upon myself to counter his claims in support of non-heterosexuality and non-heterosexual equality with my own piece, “On non-heterosexuality, religious absurdity, heteronormativity, human dignity, love, and freedom.”
In good form, Rustmann then wrote a response to my response called, “In response to: On non-heterosexuality, religious absurdity, heteronormativity, human dignity, love, and freedom.”
Naturally, the dialectic must continue! Which brings me to my long overdue response to his response to my response.
On the outset I want to express my respect and appreciation for Blake’s conviction, eloquence, attention to detail, and interest in participating in this discussion. I am proud to call him my friend and fraternity brother. He is one of the kindest, most considerate people I know, and, insofar as who he is is the cumulative totality of his conscious actions, qualities, and states, he is among the best of people. He just happens to not be right about the metaphysical, ethical, and socio-legal-normative questions examined here.
To enumerate the contentions at hand and show where we’re going before we get started, our debate centers around at least five fundamental divergences: 1) the nature of the self, action, and responsibility; 2) moral relativism and the goodness of non-heterosexuality; 3) the importance of socio-legal and institutional non-heterosexual equality and equity; 4) the idea of teleology in natural phenomena; and 5) the proper role of religion and religious values in society.
Let’s take each in turn.
1) The nature of the self, action, and responsibility
In his original piece, Rustmann argues that it is coherent and reconciliatory to disapprove of non-heterosexual actions—i.e. non-heterosexuality—while not disapproving of members of the non-heterosexual community themselves. I responded that non-heterosexuality is essential to the identities of non-heterosexuals, and that there is no ethical or socio-legal distinction between the two, especially with regard to the regulatory goals of anti-queer rights advocates. Regulating non-heterosexuality amounts to regulating non-heterosexuals themselves because non-heterosexuality is part of who they are. You can’t ethically and socio-legally condemn non-heterosexuality without simultaneously condemning non-heterosexual people and their identities.
In his response to my response, Rustmann then argues that by eliminating the distinction between non-heterosexuality and non-heterosexual identity I am inappropriately exempting the non-heterosexual community “from a distinction that applies to the rest of us.” Quite the contrary. I propose no such exemption. The inseparability of action and the self is as much an ethical and socio-legal claim as it is a metaphysical one about the very nature of identity, which, as such, implies a universal account of what the self—the I, the ego, etc.—is.
What we do is an essential and inseparable part of who and what we are as conscious beings. I am something of a Sartrean about the self. The self, as it were, is a thing that we as conscious beings create. Identity is an invention—an object—of consciousness. At the bottom of every “thing” is consciousness—but consciousness is not itself a thing. It is no thing. Consciousness creates “things” out in the world by distinguishing them, including the ego. In other words, consciousness carves up the world with distinctions. Without conscious distinction, there is only nameless being. Consciousness is fundamental in that it experiences the world—consciousness experiences being—and constructs subjective reality by making distinctions in order to cope with existence. Without consciousness to create distinctions—to differentiate between experiences of being—there could be no distinct things. Consciousness must distinguish them. Consciousness, then, in experiencing and making distinctions about the world, distinguishes the self and in doing so constructs it—the I—out of conscious qualities, states, and actions through the process of reflection and synthesis.
The self is the synthetic transcendent unification of our experiences—the qualities, states, and actions of consciousness. It is an object of conscious awareness—a composition of reflective consciousness—an amalgamation of consciousness as being and as a being—and one from which who we are is inseparable. Most fundamentally we are conscious, but who we are—our essence—selfhood—comes after the fact. Action is indistinguishable from who we are because action does not exist in being—as does consciousness—but as one aspect of the conscious experience and of the self. Who we are is an ever accumulating and changing gestalt of what we do. The self is, in that way, transcendent. Not transcendental, but transcendent in the sense that it consists of an infinite number of accumulating aspects. Through the cumulative process of experiencing conscious action, qualities and states, conscious reflection upon them, and finally synthesis, we construct the self. Reflective consciousness ties our conscious actions, qualities, and states together to create the essence of who we are—our sense of “I.” The human creates its self. “Existence precedes essence.”
If we take Rustmann’s view of identity, who we are exists in a void with its essence predetermined and unchangeable by our actions, qualities, and states; for him, who we are is independent of what we do. Only by fundamentally separating the two can we condemn one without condemning the other. The unsavory moral consequence of this separation, however, is that it dismantles the means by which responsibility for action is attributable to the actor: “Condemn my action, not me. Who I am is not what I have done.”
But actions are not responsible for themselves, people are. The two are metaphysically and socio-legally indistinct.
To draw a fundamental distinction between action and actor amounts to little more than an impotent metaphysical trick to skirt accountability. People are held responsible for their actions because we are what we do. If I kill someone in cold blood, I am imprisoned for the act of murder and because I am responsible for killing. It has become part of who I am—ethically, socio-legally, and metaphysically. And insofar as we cannot change the past, our experiences—our conscious qualities, states, and actions—are, so long as consciousness persists, forever a part of who we are. We cannot escape responsibility for what we do.
Rustmann then raises an example and a question:
“For instance, my writings are an action. Jordan disapproves of the opinions that I wrote. Does that mean he disapproves of me as a person? I hope not.”
Here he wants to bolster the distinction between his writing and his identity by arguing that by my logic, if his writing is inseparable from his identity, and if I believe his writing or perspective is wrong or bad, then I must also think he is a bad person. I do not. I do think his written perspective on non-heterosexuality is wrong—or at least not right. I also think it is inseparable from his identity. But this is only one of an infinite number of aspects of his ever-accumulating identity, the cumulative gestalt of which is, I believe, overwhelmingly admirable and commendable. One bad branch does not mean the whole tree is bad—the bad branch just needs attention.
2) Moral relativism and the judgment of non-heterosexuality
Rustmann also argues that because I disparage moral absolutism, I “obviously” consider “any type of non-relativistic moral ideology as ‘oppressive, exclusionary, and discriminatory.’” Indeed, I do consider the ethical condemnation and socio-legal institutionalization of non-heterosexual inequality and inequity an oppressive, exclusionary, and discriminatory agenda. But I am not the strict moral relativist the author wants to paint.
Indeed, radical cultural relativism, if taken in principle to be absolute, yields another form of unacceptable universalism. The idea that, universally, no action can be judged or evaluated outside of the context of the actor’s culture is itself as dogmatic and absolutist as the position that all people should be held to any religious or secular universalistic moral system. Relativism if taken to its logical extent entails that relativists must be relativistic about even relativism as a universal ethical framework. Relativism contradicts itself in that way.
I, in contrast, contend that some actions are so offensive to moral sense and conscience that they cannot be tolerated—non-heterosexuality just isn’t one of them. Terrorism, holy wars, racism, genocide, female circumcision, slavery, sexism, torture, genderism, the rapacious destruction of the natural world, and institutionalized socio-legal inequality and disenfranchisement: these are among the set of intolerable ethical impermissibilities. A relativist could not make such a claim.
In large part, though not universally, I think J.S. Mills harm principle is a good guide for determining ethical and regulatory permissibility and tolerability. Actions that are wholly self-regarding—i.e. actions that pertain to and affect only the actor—are generally, if not always, permissible and should not be regulated, while actions that are other-regarding—i.e actions that pertain to or affect people other than the actor—should be regulated insofar as such actions compromise the liberty or right to freedom from harm of others. There is no strict relativism here. By rule of the Harm Principle, non-heterosexuality is self-regarding and therefore ethically permissible, and the freedom to socio-legally express non-heterosexuality should not be infringed.
3) The importance of socio-legal institutional equality and equity
The author then, contradicting himself again, argues that while he supports laws making non-heterosexuality illegal—e.g. the Oklahoma ban on same-sex marriage, and presumably the Defense of Marriage Act (DOMA) and California’s Proposition 8—he doesn’t “think the government should make laws criminalizing homosexual behavior, nor h[as] [he] ever proposed that.” In reality, however, to support Question 711 and similar laws that condemn and criminalize non-heterosexual marriage constitutes exactly such a proposition.
Perhaps the confusion stems from what follows. There are really two senses of condemnation at work here: ethical and legal. We must remember, what is ethical is not necessarily legal, what is legal is not necessarily ethical, what is unethical is not necessarily illegal, and what is illegal is not necessarily unethical. This is the intersection of the theoretical and the practical—the overlap of ethics and policy.
There are two dialectics of relevance here: 1) what is ethical and unethical (the ethical dialectic) and 2) what should be legal and illegal (the legal-normative dialectic).
Often the two are conflated and treated simultaneously, but it is important to clarify within which dialectic we are engaged and when because they are fundamentally separate and have radically different implications—and we ought to avoid making category mistakes. The ethical dialectic and any condemnation it might entail is theoretical condemnation and affects moral conscience, social perception, or perhaps the state of one’s soul, while the legal-normative dialectic and any condemnation it might entail is practical condemnation and affects literal social liberty and freedoms—i.e. imprisonment, monetary penalty, or socio-legal limits on self-determination.
The debate over non-heterosexual equality occupies the realm of the legal-normative dialectic, but often converges with the ethical. Still, it is two different things to argue, as Rustmann wants to do simultaneously, that 1) non-heterosexuality is unethical, and 2) non-heterosexuality should be illegal. To clarify, I contend that non-heterosexuality is neither unethical nor should it be illegal. Rustmann, however, in arguing that non-heterosexuality is both unethical and should be illegal, misses an important distinction. It is tolerable (though I think misguided) to believe non-heterosexuality is unethical. But being unethical (the ethical dialectic) doesn’t automatically entail that it should be illegal (the legal-normative dialectic). It is consistent and socially tolerable to hold that non-heterosexuality is unethical, but still believe that it should not be illegal. But Rustmann goes a step further. For him, not only is non-heterosexuality unethical, it should also be illegal. This, I believe, is inconsistent with the Harm Principle and ultimately explains his internal contradiction discussed before. Theoretical ethical condemnation of non-heterosexuality may be unenlightened, but by itself must be tolerated because theoretical condemnation does not necessarily entail socio-legal condemnation. But Rustmann and anti-queer advocates don’t stop at the theoretical. They push for socio-legal condemnation in the form of laws like Question 711, DOMA, and California’s Proposition 8. That is intolerable.
We cannot forget humanity’s multi-millennial legacy of socio-legally oppressing non-heterosexuals. Western religion has condemned non-heterosexuality almost unilaterally since the Old Testament. In 20th century America, rulings like Bowers v. Hardwick judicially institutionalized the legality of imprisoning non-heterosexuals for expressing their love and having sex. It was not, and probably still is not, uncommon for non-heterosexuals to lose work or appointments just for being non-heterosexual. Just recently President Putin signed a law permitting the arrest of “gay propagandists” and threatened its enforcement on LGBT athletes of the 2014 Sochi Winter Olympics. Not even a week ago India’s judiciary upheld a law criminalizing non-heterosexuality. And gay men are still put to death in the hyper-religious Middle East for no more than being gay. These are not theories. These are the disturbing realities.
4) Teleology disguised as science
In his response to my response, Rustmann also draws several repugnant comparisons between non-heterosexuality and a shocking list of degenerative diseases—in particular: alcoholism, bipolar disorder, and schizophrenia. Somehow, it seems to him that ethically and socio-legally condemning non-heterosexuality is equivalent to objecting to an alcoholic friend having another drink. This comparison is asinine.
Comparing non-heterosexuality to alcoholism, bipolar disorder, or schizophrenia warrants a dramatic face-palm. It is both an equivocation and a category mistake. Alcoholism, bipolar disorder, and schizophrenia are degenerative diseases that cause physiochemical and societal problems if allowed to persist unchecked. To compare them as if they’re equivalent is outrageous. Non-heterosexuality is not a disease, it is not a problem for non-heterosexual individuals, and it does not cause problems for society. Period. Nothing else ought need be said about this point to demonstrate its absurdity.
It is clear that Rustmann and I operate from different values systems. By his judgment, non-heterosexuality is bad, wrong, “disordered,” and contrary to human dignity. For reasons explained below, I obviously disagree.
My disagreement raises a fundamental question: From where does his judgment that non-heterosexuality is bad, wrong, disordered, and contrary to human dignity arise? The answer is two-fold: 1) Judeo-Christian values and ethics, and 2) the conflation of teleology and evolutionary function.
The author purports that his condemnation of non-heterosexuality is supported by the dictates of biology. But his reasoning relies upon a series of unsound scientific premises and an implicit assumption and furtive imposition of religious values. Let’s move through each one individually:
Premise 1: “Biology dictates that ‘natural’ sex occurs between a man and a woman.”
Counter-argument 1:Here he has reversed the logical relationship between “biology” and what is “natural.” Put correctly, everything within the purview of biology is natural, but not everything that is natural is within the purview of biology. In other words, to appeal to biology is to automatically admit and assume that the phenomenon in question—non-heterosexuality—is natural. If he wants to claim that non-heterosexuality is unnatural, he contradicts himself by appealing to biology. Biology does not distinguish between “natural” and “unnatural” sex—only kinds of sex, all of which is inherently “natural” by virtue of being within the realm of biological science.
Premise 2: Non-reproductive sex is “disordered.”
Counter-argument 2: Rustmann first defines “a disorder” as “when the purpose of [a] natural act is interrupted.” This definition is immediately problematic insofar as teleology—the idea of purpose—is inappropriate for discussing or explaining natural phenomena. But we’ll return to this point about teleology when I address Premise 3 below. More to the point: the claim that non-reproductive sex is “disordered” is an Augustinian distinction, not a biological one. Biology makes no such distinction. For biologists, non-reproductive sex is not “disordered.” Non-reproductive sex is just non-reproductive sex. Rustmann’s push to categorize non-reproductive as “disordered” vaults clear over Hume’s fact/value distinction without even realizing what it’s done. What of recreational or pleasure-oriented sex, or sex between the infertile or the elderly? Are these “disordered” as well? “Disordered” implies normative and teleological judgment that biologists, in aiming to remain objective, strictly avoid. In reality, the claim that non-reproductive sex is “disordered” is religious judgment, not biological.
It’s also worth noting that the author then makes another cringe-worthy comparison—this time comparing non-heterosexuality to incest and pedophilia. The very notion of such a comparison is just as inane as his prior juxtapositions to alcoholism, bipolar disorder, schizophrenia, and reminisces of Rick Santorum’s appalling claim that homosexuality is akin to bestiality. Absolutely ludicrous. Let’s move on.
Premise 3: There is only one “purpose of sex” and the only purpose of sex is procreation.
Counter-argument 3: For Rustmann, sex is reserved exclusively for reproduction. Procreation is the only “biological purpose of sex.” First of all, it’s clear that here he has conflated the ideas of purpose and function. Evolutionary theory—to which he subsequently appeals—has fundamentally removed the scholastic basis for teleological speculation about natural phenomena. Natural phenomena—being—do not have natural “final causes” or purpose, but function. Purpose is our perception of function. The two shouldn’t be confused. Purpose doesn’t exist out in the world, only function does. Purpose is a human idea applied to natural phenomena.
So we should talk about the functions of sex, not its purpose—as if there could ever be only one. Sex has many functions–reproduction among them—which include the expression of love or lust; the intensification of emotional, physical and spiritual connection; art; pleasure; etc. Non-reproductive sex does not “side step the primary purpose of sex” because there is no purpose of sex, there is only function, and reproduction is only one function of sex.
Nevertheless, the author continues to argue that non-heterosexuality is contrary to evolutionary function and thus is “disordered.” This is an incorrect and narrow reading of evolutionary function. First of all, that non-heterosexual genotypes exist in perpetuity within in our species all but necessarily entails that non-heterosexuality has been naturally selected for. The germane question is not “What is the purpose of sexuality?” as Rustmann puts it, but “What is the function of non-heterosexuality?”
Non-heterosexuality may have several evolutionary functions. First, it seems relevant to reiterate a basic tenant of ecology—diversity improves resilience. In other words, diversity in sexuality may ultimately make humanity as a species more resilient. On one hand, non-heterosexuality stimulates non-heterosexual social bonds that strengthen communities. On the other hand, as Josh Barrow points out, non-heterosexuals may serve a kin-selection evolutionary function by helping to raise the offspring of other family members—making it more likely that other family members will have children and that more children will survive—or adopted children. Finally, non-heterosexuality may be a natural evolutionary response to human over-population—the ultimate driver of the modern ecological crisis—which constitutes an undeniable threat to the perpetuation and survival of our species.
If the author’s concern truly lies in the wellbeing of children, then his interests are actually in direct alignment with non-heterosexuality and the biological fitness improvements—e.g. contributions to child-rearing, population stabilization—they entail for individuals and our species. In other words, evolutionary theory supports exactly the opposite of the author’s interpretation.
We ought do away with the discriminatory idea of non-heterosexuality as biologically “disordered” altogether. If anything, non-heterosexuality is an astonishing and awe-striking example of nature’s profound capacity to re-order itself as is necessary to maintain stability and homeostasis within its biological systems when chronic perturbations (like human over-population and subsequent anthropogenic pressures on the Earth systems) occur. Heterosexuality and non-heterosexuality may actually be best understood as akin to the black and white daisies of James Lovelock’s Daisyworld, existing in an interdependent and reciprocating dynamic stability.
Rustmann claims that his belief that non-heterosexuality is “disordered” is rooted in science, not theology. But this is an attempt to disguise religious values as scientific. His reading of science is undergirded by blatantly religious values and teleological dogmatism contrary to Darwin’s evolution. In short, his interpretation of science is incorrect. Moreover, he altogether ignores the ought/is distinction, imports religious values onto flawed scientific reading, and conflates the ethical dialectic and the legal-normative dialectics insofar as he claims his objection is an ethical one but then argues that society ought to institutionalize anti-non-heterosexual religious values as law (OK Q711, DOMA, etc.).
5) Religion and religious values in society
Within society, recall, there are—among others—two distinct dialectics of relevance here: the ethical and the legal-normative. Religious values are usually permissible in the ethical dialectic—and moreover, I should be clear, I have no inherent objection to faith in religious mythology. Faith in religious mythology is, after all, an especially resilient vehicle for values and ethics that make life feel meaningful and worth living—perhaps even more so than faith in secular mythology.
But in the legal-normative dialectic of the United States—i.e. what should be legal or illegal in the US—we cannot simply ignore Constitutional Law and permit the entrance of religious value. By the First Amendment, it is unconstitutional to establish religious values as law. Freedom of religion does not mean the freedom to force your religion on others. Legislators “shall make no law respecting an establishment of religion.” Banning same-sex marriage on the basis of religious values precisely constitutes an unconstitutional establishment of religion. If marriage is an exclusively Judeo-Christian heterosexual institution, then marriage should not be a legal institution, but a religious one, about which, again, the Constitution forbids the legislative establishment.
The author also says he would be fine with civil unions or something of the sort for non-heterosexual couples. But civil unions as a solution to the marriage discrimination problem don’t go far enough, and are, moreover, unconstitutional under the Equal Protection Clause. Ultimately, civil unions for non-heterosexuals are a mere façade of socio-legal equality. Civil unions to side-step the marriage discrimination problem is no better than a revitalization of Separate But Equal doctrine pertaining to non-heterosexuals. And just as Separate But Equal was wrong regarding race, so too is it wrong regarding sexuality and genderism. If Rustmann wants to reserve “marriage” for heterosexuals, then, legally, as far as the government is concerned, every marriage should be no more than civil union and should be equally available to all adult citizens of any gender or sexuality.
In yet another strange and furrowing turn of argument, the author also contends that non-heterosexuals already are socio-legally equal and that “the definition of marriage should not be changed […] to any other definition.”
“LGBT people do have socio-legal equality,” he argues. “They are perfectly welcome to marry just like any other adult person. However, marriage requires one man and one woman. If they don’t want to be joined with a person of the opposite gender, then they should not get married.”
This sort of exclusionary criterion for legal matrimony is obviously not equal. Marriage equality does not mean the freedom to join with a person of only the opposite gender. It means the freedom to join with a person of your choosing. Limiting that choice to a person of the opposite gender is a blatant, harsh, arbitrary, and capricious limitation of that freedom. Moreover, insofar as the author opposes changing the definition of marriage, laws like Oklahoma’s Question 711, DOMA, and California’s Proposition 8 do exactly that; they change the definition of marriage to explicitly exclude non-heterosexual couples. This is not freedom, and it is not equal.
Freedom is a fundamental value about which Rustmann and I likely both agree. In other words, freedom–the conservation of personal liberty, autonomy, and self-determination—is important. But for him, freedom comes with an asterisk. Freedom with regard to marriage is reserved for heterosexuals—even more so, fertile heterosexuals willing to “on-record declare that they are open to having children.” Excluding non-heterosexuals, the infertile, the elderly, or those uninterested in procreation from the freedom to marry who they love if they so choose is outright antithetical to freedom. It seems all but obvious that, for freedom’s sake, it is important that allies of the non-heterosexual community continue to contest pieces of legislation like Question 711 and those who support them.
Discourse as optimism
As enumerated toward the top, this debate centers on several fundamental divergences about perennial philosophical questions. By definition, perennial philosophical questions are irresolvable in an absolute sense. But discourse is itself reason to be optimistic. We ought regularly and openly subject our views to the scrutiny of others. Only when we can amiably, and with mutual respect, engage in the process of open public dialogue will we be able to ameliorate the tensions and problems of society. Indeed, this responsibility falls to all generations, but I am especially confident that the present rising generation—we Millennials who will soon ascend to seats of power in the world and control, to what extent we the can, the trajectory of humanity—will be able to make a difference. Of course the extent to which we can control the human condition is quite limited, but some social and political aspects of human life are within our purview. And I rest with a hopeful assurance that we as people, if ultimately unified by being human together, are open-minded, thoughtful, discursive, respectful, tolerant, and politically engaged enough to respect and preserve the socio-legal freedom and equality of all people—not despite, but for their differences.