This coming week, the Supreme Court will, just as Scalia predicted, consider whether the government has any constitutional basis for barring same-sex couples from marriage. And while sometimes buried under layers of legal jargon or hidden by strategic decisions to focus elsewhere, the role of morality in this pitched national debate is paramount. At bottom, the question for the court is whether the moral disapproval of homosexuality held by a majority is sufficient reason to limit the freedom of gay men and lesbians to marry.
Of course, not everyone frames it this way. Though Americans are a famously moralizing people, we frequently avoid a conscious embrace of the moral dimensions of our most pressing debates, preferring the language of freedom, rights and harms. This has been especially true for gay advocates and the political left, for whom individual autonomy has meant a reluctance to judge personal behavior. But it’s increasingly true also of the right, which, finding a nation unpersuaded by direct appeals to moral and religious conviction, has turned to pragmatic and utilitarian arguments instead — claiming, for instance, that unit cohesion and family stability are imperiled by permitting gays in uniform or at the altar. For their part, the courts, for sound constitutional reasons, have sought to avoid basing decisions explicitly on moral positions.
Sidestepping morality is difficult. And when it comes to same-sex relationships, John Corvino argues in “What’s Wrong With Homosexuality?,” that approach is “badly mistaken,” as it cedes territory to anti-gay opponents and wastes the opportunity to make a case for the moral goodness of same-sex love. “We shouldn’t confuse the rejection of bad moralizing with the rejection of moralizing altogether,” Corvino writes.
He’s right. It’s an argument that the gay rights movement has recently embraced, especially as marriage has become its preeminent goal. Arguing that same-sex love deserves equal recognition, as President Obama said eloquently in his second inaugural address, is a moral project. It amounts to saying “gay is good,” not something to be tolerated despite being morally reprehensible.
Indeed, one of the most notable but little noted recent culture-war developments has been the stark role reversal by advocates and opponents of gay equality on the relevance of morality to their arguments. For decades, anti-gay activists freely expressed moral opprobrium — even disgust — at the thought of homosexuality, successfully opposing gays’ right to teach, serve in uniform, have sex, become Boy Scouts, be ordained or marry, all based on condemning some variation of their “unmentionable vice.” Without the tools to assert their moral worth in response, gay advocates replied with the language of tolerance, privacy and liberty, almost as if they were demanding the right to be morally bad.
Yet in competing briefs for the Supreme Court, it was the pro-gay arguments that were redolent with the language of morality, while opponents bent over backward to insist that they had no moral argument against gays. “The absence of any rational justification for depriving gay men and lesbians of their right to marry,” proponents of marriage equality wrote, regarding the California initiative that is before the Supreme Court, “leads inexorably to the conclusion that Proposition 8’s principal purpose was to advance the majority’s moral disapproval of gay relationships.”
Bristling at the allegation of moral judgment, opponents countered by arguing that marriage can properly be restricted to heterosexual unions “not because individuals in such relationships are virtuous or morally praiseworthy, but because of the unique potential such relationships have” to affect “vital interest[s]” of society.
Many gay-marriage opponents sincerely believe their own rhetoric that they want to protect marriage rather than stigmatize gays. And taking this rhetoric seriously is one asset of Corvino’s book, resulting in a level of civility whose absence in our culture wars is not only unpleasant but often ineffective in changing minds. But taking rhetoric seriously doesn’t necessarily mean taking it at face value. And failing to make this distinction is the book’s great weakness. Corvino seems to grasp the need to dig deeper when he suggests that, whatever clever rationales his opponents offer, the real source of their opposition is a feeling that homosexuality is “exceedingly yucky.”
But then why dedicate a book to refuting clever rationalizations for homophobia when the real action is taking place between the lines? Armed with the cover of religion and tradition, opponents of equality may sincerely believe that they are not acting out of animus and yet be wrong in that belief — that is, unaware of their more base or hostile motivations.
Unpacking these motivations is key to understanding the entire debate over homosexuality, both in the courts and in the effort to change hearts and minds. While speculating on the motives behind laws can be risky business for the courts, it can also be critical: If a law implicating a fundamental right is found to have no rational relationship to furthering an important government interest, it will be hard to pass constitutional muster, since the law will be reduced to what the court has called a “bare desire to harm.”
Motives are important beyond the courts, too. The rational case for gay equality has now been made so convincingly for those open to reasoned debate that the question “What’s wrong with homosexuality?” seems no longer to be the relevant one. The real question is why, despite the strong trend toward approval, millions continue to believe that homosexuality is wrong, even though so much evidence has emerged that it harms no one.
Unfortunately, Corvino’s book is so narrowly philosophical that readers gain little insight into this critical issue. The brief text seems somehow both too insular and too popularized, at times giving a book that belongs to Oxford’s Philosophy in Action series the feel of a handbook for parents struggling with what to make of their children’s sexuality.
Early on, Corvino makes light of the critical question “Where does morality come from?,” finally concluding that it’s one “for sociologists and psychologists, not philosophers.” That’s a sorely inadequate way to address a key question in one of the key debates of our time.
Nathaniel Frank, the author of “Unfriendly Fire,” is a visiting scholar at Columbia Law School’s Center for Gender and Sexuality Law.