Sunday, January 26, 2014

Is traditional marriage natural law?

Eugene Volokh writes:
“Virginia Attorney General abandons natural marriage,” reads a Liberty Counsel press release. “Marriage was not created by religion or government and is ontologically a union of one man and one woman.”

Really? What is so natural about exclusively one-man-one-woman marriage, as opposed to polygamy, or, more precisely, social acceptance of either monogamy or polygamy?

Polygamy has been common throughout human history, present in a vast range of cultures — according to the Ethnographic Atlas count, many more than practiced solely monogamy (though of course with such counts much depends on how you separate or group together cultures). The Old Testament of course reports this as to the ancient Jews, and on this point I suspect it is historically accurate. Many American Indian tribes have practiced polygamy. The Muslim world of course still allows polygamy, and my sense is that this reflects continuous practice in many areas from the pre-Muslim era.

To be sure, nature also provides roughly equal numbers of male and female babies, and historically nature has made it hard for men to support more than one wife. Still, very many societies throughout human history have allowed polygamy for those men who had the wealth or social status to attract multiple women at once.

He has a point, but it is a weak one. Natural law is not just what tribal people do in uncivilized societies. Just the opposite:
Classically, natural law refers to the use of reason to analyze human nature — both social and personal — and deduce binding rules of moral behavior from it. Natural law is often contrasted with the positive law of a given political community, society, or state.
Marriage has been between one man and one woman in all civilized societies, so maybe there is a rational argument that such marriage law is the best way to go, and hence natural. Marriage law could be viewed as natural in the same sense that some people view laws against murder as being natural.

Alternatively, maybe it was Christianity that drove out polygamy and other forms of marriage like cousin marriage. That is what happened in Europe, many centuries ago. But China and other cultures seemed to have settled on one-man-one-woman-marriage without Christian influence.

Ontology is the philosophical study of being and existence. Saying that Marriage ... is ontologically a union of one man and one woman” is just a way of saying that's what marriage really is. It is not an argument. I presume that the argument is made elsewhere.

With law-makers changing the definition of marriage, I am not sure what term to use for the old definition. Terms like "natural marriage" or "traditional marriage" have the problem that someone like Volokh might argue that it includes polygamy. "Christian marriage" doesn't work either as it is practiced by millions of non-Christians.

Meanwhile, the supremacist judges are marching towards same-sex marriage:
In a decision giving sweeping new legal protections to gays and lesbians, a federal appeals court on Tuesday found it as unconstitutional to exclude jurors based on sexual orientation as it is to keep women and minorities off juries.

The 9th U.S. Circuit Court of Appeals found that sexual orientation deserves the strongest anti-discrimination protections in civil rights law, siding with gay rights advocates who argued that gays and lesbians are entitled to the same equal treatment in jury trials as they are in the military, voting and marriage.

The groundbreaking decision underscored the growing importance of recent rulings in gay marriage battles, relying heavily on the Supreme Court's decision last year striking down a federal ban on same-sex marriage benefits. The 9th Circuit also cited high-court precedents forbidding bias in jury selection based on gender and race. ...

Vikram Amar, a UC Davis law professor, said the new legal protection could be particularly important in challenges to bans on gay marriage in other states within the 9th Circuit, such as Nevada, which is defending its law in the same court. California's gay marriage ban already has been invalidated.

"Today's ruling will make it exceedingly difficult for states to justify laws that discriminate based on sexual orientation," said David Codell, litigation director of the National Center for Lesbian Rights.
Traditionally lawyers are allowed a small number of peremptory challenges to jurors. These can be based on gut feelings or anything. Only in a 1986 case did the Supreme Court forbid racial discrimination in such challenges.

Mathematicians are excluded from juries just for being mathematicians. I don't see why gays should have more rights than mathematicians.

Follow the logic here? The court refuses to decide in favor of same-sex marriage, but makes comments that are used to support gay jurors. Then the gay juror decision is used to support same-sex marriage. Isn't any judge going to make the obvious comment that none of this is in the Constitution?

The research studies still show that dads and moms do best:
Progressives like Obama and Krugman are clearly right to argue that the American Dream is in trouble. Today, poor children have a limited shot at moving up the economic ladder into the middle or upper class. One study found that the nation leaves 70 percent of poor children below the middle class as adults. Equally telling, poor children growing up in countries like Canada and Denmark have a greater chance of moving up the economic ladder than do poor children from the United States.
Before you get too excited, but moving up the ladder more easily also means that moving down the ladder is easier.
Of all the factors most predictive of economic mobility in America, one factor clearly stands out in their study: family structure. By their reckoning, when it comes to mobility, “the strongest and most robust predictor is the fraction of children with single parents.” They find that children raised in communities with high percentages of single mothers are significantly less likely to experience absolute and relative mobility. Moreover, “[c]hildren of married parents also have higher rates of upward mobility if they live in communities with fewer single parents.” In other words, as the figure below indicates, it looks like a married village is more likely to raise the economic prospects of a poor child.
The single moms are doing more to destroy our society than anyone else.

These studies tend to overlook heritable psychometrics, so marriage will not solve the provlem. The kind of women who become single moms are the ones who should not be breeding anyway.


Anonymous said...

In terms of civil rights, like in employment, homosexuals should be entitled to equal protection. But requiring marriage to be one man, one woman doesn't explicitly discriminate against homosexuals. Rock Hudson was gay and married to a woman and so have many others been. That's a way for a homosexual or bisexual to have children.

Anonymous said...

Monogamy is not natural law. The natural state of humanity is women pursuing a few genetic celebrities, and the bulk of the man getting no play. Natural law is men with walled harems, and gangs of lesser men trying to steal the women therein by force.

Monogamy is an invention, an innovation, a discovery. It's the discovery that made civilisation possible, that harnessed the energy and strength of young men by offering them something worth working for.

George said...

Good comments. Yes, without marriage law, women would cluster around the alpha males.

Anonymous said...

what people miss is that homosexuality was outlawed in these civilized societies. it was driven underground.

if you are going to allow people to be openly gay, you have to allow them the same rights as other people. we are not giving them the right to a catholic wedding, we are giving them the same right that sceintologists and mormons and atheists have, the right to choose a partner and register with the state.

the whole natural law thing, at one point natural law was trial by combat. at one point natural law was women couldnt wear pants and go to school.

Anonymous said...

is clustering around an alpha male worse for society than a young woman stealing an alpha male from a traditional marriage?

and some women would cluster around alpha males, some would not

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