Monday, June 11, 2012

Makes Sense

I found this position, taken by the Scottish Christian Party, to be very reasonable in light of some things I said recently:

The Scottish Christian Party believes that the scope of the current Civil Partnership legislation is inequitable, partial, and thus unfair. It is unfair that two spinster sisters, committed to living together, cannot have the same rights as two women in a civil partnership. We will seek to widen the scope of Civil Partnership to include all people who have committed to live together as a single household. This could include friends, sisters, brothers, and a parent with his or her adult child who chose to make this commitment. The Scottish Christian Party will take the criteria for Civil Partnership out of the bedroom and into the living room - sexuality should play no role because it discriminates against these other partnerships.
Of course, as I said in that post, I'm not sure there is, in fact, a "sexual activity test" in most civil partnership/union laws. However, in almost all cases there is still a criterion requiring that they take place people beyond the same degree of consanguinity as for marriage (which really makes no sense for people for whom the whole point is that they aren't going to constitute a breeding pair). While I said that this might make some sense given that it seems somewhat unnecessary to establish kinship between people who already have it, in general I think such subtle distinctions don't really help anything, and that all adult interdependent relationships should probably be recognized in the manner the SCP proposes in Britain, whatever the particulars of those relationships. As they say, this issue should be seen for what it really is, and what's really important in it: the living room, not the bedroom.

Whether matrimony itself (ie, the union between a man and a woman open to life, the opposite-sex of union committing to exclusivity in mating) should be recognized separately or under a different label is a separate question. Philosophically (we know as Catholics) that sort of union forms a unique (and sacred) organic whole where the life-partnership and the commitment to exclusivity in mating can't really be separated. But legally the two aspects could perhaps be recognized separately; its partner aspect alongside other partnerships, but its generative aspect under some other additional provision (though there's a question as to how much legally is relevant to just the generation of children but not to their upbringing [which other sorts of arrangements can provide for, even if that isn't the ideal]; and whether such a "super-added" legal aspect for natural parenthood would be available to parents who weren't in a partnership.)

Britain's Civil Partnership laws also currently contain the interesting proviso that they are not available to opposite-sex couples, whose only option is called marriage. This is different than some other parts of the world where both opposite-sex and same-sex couples have the option of choosing a civil union instead of civil marriage for various reasons. The British law seems to imply that if a man and woman enter into a partnership, it will be by definition the subset known as marriage (I suppose, even if they don't intend to ever consummate it; I don't know the legal details of whether sexlessness constitutes grounds for a legal annulment, but if so this should only apply to potential mating-pairs) because that potential is still implicit in its very structure (ie, in Catholicism, even a "Josephite Marriage" is a marriage validly ratified, albeit not consummated). 

However, I'm not sure this is entirely true, given that Catholicism also recognizes that an attempted marriage in which the couple enters intending perpetual contraception from the start, or who have no notion of a reproductive exclusivity...is not, naturally speaking, even a valid marriage. An infertile or Josephite is one thing; those people may not imagine having children together, or even ever having sex, but at least there is a commitment not to do it with anyone else, the right to reproductive cooperation exists in potentia, even if merely accidental circumstances exclude its exercise. Two people who decided to live together sexlessly while mating with third-parties, however, would simply not even be a marriage/matrimony at all (just like two members of the same sex, for whom the notion of breeding together is simply nonsense). Same thing for those who could not marry because of consanguinity (say, a brother and sister), or because of a previous marriage, but who nevertheless establish a household (in which we shouldn't make any assumptions about sexual activity); these are cases of opposite-sex pairings that would not automatically be any sort of matrimony.

Yet these opposite-sex arrangements, though not marriages, would certainly still be some sort of relationship or domestic partnership, valid and socially valuable in themselves, and if the label "marriage" were applied legally...meh. I mean, you don't see conservative Christians objecting to the legal terminology of "common law marriage" (for heterosexuals) even though the whole point of those is that they aren't "actual marriages" in the sense that conservatives try to insist the word is limited to (at least inasmuch as they haven't made a life-long public commitment of matrimonial exclusivity). And yet extending the term "marriage" to "common law marriages" (even though the whole point is that they are non-marriages) has never been too controversial. Add to that the examples of partnerships where a notion of rights to sexual involvement (under the banner of matrimony) would be incestuous or adulterous, and I think a good case can be made for including opposite-sex couples in those who can establish a non-matrimonial civil partnership (whatever label is applied to that), just as the SCP seeks to do.

The main point I take from all this, though, is that I really like the SCP's phrasing of this issue as "about the living room, not the bedroom." That is really what people care to have recognized, and what it is most legally relevant to have recognized: the "living room." What goes on in the bedroom is (except perhaps for some questions of presumption-of-paternity between true breeding pairs) legally irrelevant. At least at the start of the marriage; grounds for dissolution of the union related to sexual infidelity might be another issue, but I think could be hashed out on a case-by-case basis depending on whether external abstinence was understood from the start as a condition of the partnership. But you will still note: giving legal weight to a commitment of external abstinence, assumably good in itself...says nothing one way or another about the couple's internal activity or abstinence. As such, even it cannot be construed as legal recognition of anything bad (though recognition of a supposed right to expect sexual activity from a partner would be, and so should not ever be legally institutionalized outside true matrimony). 

Nevertheless, these details aside, my point is that the main motivation of legally recognizing marriages and civil partnerships today is "the living room," not "the bedroom." I don't think the law should assume anything about "the bedroom" one way or another, nor do most partners (whether sexually active together or not) want anything more than privacy in that regard. But there is nothing controversial about "the living room" in any case, and its value needs to be recognized equitably, across the spectrum of domestic arrangements and relationships (which are not defined by the sins they may or may not occasionally contain.)

12 comments:

George said...

so, to summarize your points, you think that the only really legally relevant differences between A) true heterosexual matrimony/marriage, and B) other sorts of domestic partnerships including same-sex pairs, brother/sister, spinster sisters or brothers living together, parent/adult child, divorcees, and couples who intend to perpetually contracept, or who don't intend exclusivity from the start...are:

1) only A) should include an automatic legal presumption of paternity for offspring born of the woman (though, a presumption of legal guardianship might be another issue, raising the question of just what is the legal relevance of paternity)

and 2) lack of sexual activity should only be grounds for a legal dissolution or separation of the partnership in the case of A), because in the case of B)...these people can't have any right to expect sexual activity (since you can't ever have a right to something immoral; i suppose we'd also have to say then that, even were prostitution decriminalized, a man who gives money to a prostitute has no right to expect the sex either, and can't sue to have the money returned if she takes it but then doesn't follow through).

though, you seem to imply there could be a legally recognized grounds for dissolution based on sexual activity outside the union (assuming that was understood from the start as precluded by the union), because this, in itself, implies no right to anything immoral WITHIN the union.

is this correct?

A Sinner said...

Yes, I'd say that summarizes it well. Your point about prostitution is an interesting one, as I think it shows the difference between decriminalizing it vs. "legalizing" it.

In decriminalization, the State simply wouldn't punish anyone for engaging in it. This Catholics can theoretically support.

"Legalizing," however, would imply that the State would treat the exchange as a valid contract (verbal or otherwise) and therefore imply a RIGHT to immoral activity.

In other words, if the client paid the woman and then didn't get the sex, he'd have a legal RIGHT to get his money back that the State would enforce for him...which is a VERY different story both ethically and legally from mere decriminalization. And I don't think the State should ever be complicit in an arrangement like THAT.

AGustavoG said...

A useful word is procreational.  It embodies a complex of notions that covers not simply the begetting of children but the nurturing and raising of them too. Marriage then is what occurs when two people enter into a procreative relationship with each other and each notion within the complex is necessarily constitutive of the relationship as a whole. 
These include:

1) the intention of each partner from the outset of having sex with each other exclusively while both are alive. (that each partner is committed to just one procreatioanl relationship helps ensure its procreational quality and rules out divorce in principle as the acceptance of the possibility of divorce at any stage of the procreational relationship deprives it of its nature as procreational)
 
2) that the sex had is always subordinate to, and open to, the procreative purpose (hence the rationale for no contraception)

3) same-sex sex can never be with issue and so on principle is excluded from the procreational relationship (ensures same-sex procreational relationship is excluded as meaningless)

4) complimentary-sex sex between two post-pubescent partners may in principle be with issue and so cannot be in principle ruled out as procreational (that in practice, by accident of circumstance, there is no issue does not obviate the intention and nature of the sex as procreational and does not render the relationship non-procreational)

5) parents have procreational obligations to children that issue within the relationship and these are in accord with both nature and convention, e.g. both parents must provide just material, emotional and spiritual support to their children to the extent they require and so far as it is within the parent's means. 

6) parents have authority over their children to the extent that this is necessary for the parents to fulfill their obligations to their children

7) society has obligations to support procreational relationships to the extent of  providing the social conditions of their possibility. 
 
I find no reason for supporting the notion of legally established civil partnerships, whether between complementary or non-complementary sexed couples, and whether for those who intend to have non-procreational sex with each other or to have no sex at all with each other. For I see no social benefit that would derive from any such legal arrangements, or at least no social benefit for which there is no legal support elsewhere. Do you? 

Asking for a law to recognize civil unions between spinster sisters, for example, is a very bad idea, not just because it serves no practical purpose that isn't or couldn't be served elsewhere, but because it is a way for Catholics to self-deceivingly give positive, legal recognition to partnerships integrally founded on homosexual practice. Let's stop going down that road. 

A Sinner said...

"For I see no social benefit that would derive from any such legal arrangements, or at least no social benefit for which there is no legal support elsewhere. Do you?"

Yes, I do.

I think "the living room" is socially valuable, and not just when it is connected by nature (as you describe for the complex of concepts in procreational relationships, ie, marriage) to "the bedroom."

Many people have written about how a strong and healthy democracy is based not only on the State, the Family, Business, and the Church...but on voluntary bonds between people.

Sometimes you hear this called "Civil Society," although that concept sometimes includes the Family and the Church. But if the Family and the Church are part of "civil society"...they are certainly not the only part.

In fact, there are all sorts of associations, all sorts of groups (however large or small) whose value and importance cannot ever be overemphasized when it comes to undermining Totalitarian tendencies in a society.

I think there is plenty in philosophy and political science to back up the claim that these "horizontal" relationships (which, ultimately, just fall under the general heading of "Friendship") are of supreme importance in society and indeed life itself.

Any ideological movement that leaves no official place for the FIFTH "Confucian relationship" (albeit it is somewhat by nature "unofficial," not involving subordination or power or authority)...I consider very dangerous.

You speak of giving "legal recognition to partnerships integrally founded on homosexual practice"...but I really have no idea what you mean by "integrally founded on."

If you talk to most homosexual couples, even who ARE sexually active with each other, I'm pretty sure they'll tell you that their relationship, while sex may occasionally take place, is not "founded on" it, that their role as sex-partners is accidental to their relationship, and that when they seek legal recognition it is not for "the bedroom" (where they only seek privacy), but rather for "the living room."

As someone on another blog I saw recently said quite astutely: you don't need a relationship to get sex, you don't move in together for the sake of enabling the sex, and certainly the sex has nothing to do with a desire for public/legal recognition (you don't need that to have sex.)

It is tragic that sometimes people sin together. But this does not invalidate their relationship in itself (and that's true whether we're talking about a husband and wife, a parent and child, or "special friends.")

AGustavoG said...

Dear Poor Sinner,

My question concerning parlour relationships did not address the social benefit of these arrangements, but asked what benefit would accrue to society from institutionally establishing them through formal, legal contract. I see none, and I asked if you did. I don’t see that you have actually responded to this question.

Concerning my point about "legal recognition to partnerships integrally founded on homosexual practice" you say you have no idea what I mean by “integrally founded on.” Let me ask for your forbearance and generosity and I will try to recast the point I was attempting to make.

In terms of the totality of a loaf of bread the yeast constitutes a very small portion, yet the yeast suffuses the entire loaf and gives the bread its character. To suggest that homosexual activity is merely one, “accidental” element among others in the life of cohabiting homosexual partners, akin, perhaps, to other elements of their shared life such as arrangements concerning who does the shopping or who grooms the pet, is, I would suggest, either fabulously naïve or fabulously disingenuous. I would say it is self-evident to those with eyes to see that the sexual “element” between the partners is integral to the quality and nature of their whole life together, that it informs all other aspects of their life to a greater or lesser degree, and that without it being present at least at some point in their shared life, that shared life would not posses the character that it does.

During passage of the British Civil Partnership Bill of 2004, an amendment was proposed to extend eligibility to, among others, siblings who lived together and supported each other. The amendment was rejected on the grounds that it was a spoiler move, intended to undermine a primary intention of the bill, which was to grant a sine qua non legitimacy to the homosexual basis of those civil partnerships. And those who rejected the amendment were right in their estimation of its intention.

Now, my point is that those Catholics who would draw logical distinctions between the parlour and the bedroom are attempting to deal with a difficult reality by pretending, through logical conceit, that it is not as difficult as it is. They are attempting to say that there is no essential difference between a homosexually founded partnership and one that does not include any sexual activity or sexual commitment between the partners; that the only difference between these types of partnerships is the accidental one of homosexual practice, and that if one sets this aside, then, in essence, there is no difference in the nature of the partnerships. But this is to ignore how the sexual basis affects the whole. Homosexual practice is gravely disordering, not just with respect to certain bedroom activities, but with respect to the life and order of the individual soul who indulges the practice. And if this sounds like a harsh saying, it is because it is a harsh saying.

Catholics must be forthright about this issue. We can’t say, for example, that adulterous sexual acts are disordered but the emotional life established between the adulterers on the basis of their adultery is a good that can be considered logically separate. Or can we, do you think?

A Sinner said...

"My question concerning parlour relationships did not address the social benefit of these arrangements, but asked what benefit would accrue to society from institutionally establishing them through formal, legal contract. I see none, and I asked if you did. I don’t see that you have actually responded to this question."

I don't think you can separate the two. If they are of social benefit, then recognizing/enabling them legally is socially beneficial.

Both by encouraging their stability, and taking some of the legal ambiguity out of the situation (in terms of finances, decision-making, etc) that otherwise would consume a lot of time and energy resolving in the courts.

And, of course, with the rights associated with domestic life also come responsibilities, and those are responsibilities that would be taken OFF the back of society/the State and put officially under the aegis of these households if legally recognized.

"In terms of the totality of a loaf of bread the yeast constitutes a very small portion, yet the yeast suffuses the entire loaf and gives the bread its character."

I understand the analogy (it's quite a good one, actually, for the point you're trying to make)...but simply utterly reject its aptness.

As I simply don't think that's how it works out in practice. It's good "shock and scare" spiritual imagery for discouraging such things, perhaps, but I think generally one will find, in actual practice, that the "lifestyle" of people "living in sin" (a concept I obviously find problematic) is simply not at all all that different, outside the bedroom, than anyone else's.

"To suggest that homosexual activity is merely one, 'accidental' element among others in the life of cohabiting homosexual partners, akin, perhaps, to other elements of their shared life such as arrangements concerning who does the shopping or who grooms the pet, is, I would suggest, either fabulously naïve or fabulously disingenuous."

I disagree. I think it is (or can be) perhaps more akin to regular contraceptive use among married couples. Sinful, yes. "Central" in such a way as to warp and deform the whole relationship?? Not necessarily. Overall demographic effects on society as a whole are another question.

"I would say it is self-evident to those with eyes to see that the sexual 'element' between the partners is integral to the quality and nature of their whole life together, that it informs all other aspects of their life to a greater or lesser degree, and that without it being present at least at some point in their shared life, that shared life would not posses the character that it does."

I simply don't see life working in this "one bad apple" way. The idea of "lifestyle" or "living in sin" has long been used to create a two-tiered system of sinners, and I simply don't think it is pastorally effective any longer (nor, strictly speaking, theologically accurate).

It makes good fodder for judgmental diatribes, though, it seems.

A Sinner said...

"During passage of the British Civil Partnership Bill of 2004, an amendment was proposed to extend eligibility to, among others, siblings who lived together and supported each other."

Which is what the SCP supports, and which I also support.

"The amendment was rejected on the grounds that it was a spoiler move, intended to undermine a primary intention of the bill, which was to grant a sine qua non legitimacy to the homosexual basis of those civil partnerships."

Politics. Bah.

Laws cannot be judged by the attitudes-associated-with or the "propaganda" subtexts as if these can make things evil (anymore than GOOD intentions could somehow make a misguided law good).

A law should only be judged on its objective content.

Including siblings, to me, poses no problem. But it raises the question of kinship-establishing; siblings already have kinship, other parties don't. If siblings were included it might imply that that element was not really part of the law.

"are attempting to deal with a difficult reality by pretending, through logical conceit, that it is not as difficult as it is."

I wouldn't deny that the whole sociological (and, indeed, psychological, and of course, spiritual) situation in the world today is ridiculously complex (and, likewise, politically, economically, etc etc).

It is for this reason, indeed, that I think crying the sky-is-falling over all this is a waste of time.

"They are attempting to say that there is no essential difference between a homosexually founded partnership and one that does not include any sexual activity or sexual commitment between the partners; that the only difference between these types of partnerships is the accidental one of homosexual practice, and that if one sets this aside, then, in essence, there is no difference in the nature of the partnerships."

Objectively there isn't.

I'm not saying that spiritual (or psycho-emotional, or whatever you want to call it) corruption doesn't creep in. Perhaps even become pervasive.

But those are subjective, and it's not the State's job to judge things based on subjective factors like "spiritual corruption."

A Sinner said...

"But this is to ignore how the sexual basis affects the whole. Homosexual practice is gravely disordering, not just with respect to certain bedroom activities, but with respect to the life and order of the individual soul who indulges the practice."

Like all sexual sin. Like all sin, period. But the State really, in our culture at least, can only offer privacy to that question. It isn't publicly relevant. Living arrangements, on the other hand, may be publicly relevant.

"Catholics must be forthright about this issue. We can’t say, for example, that adulterous sexual acts are disordered but the emotional life established between the adulterers on the basis of their adultery is a good that can be considered logically separate. Or can we, do you think?"

We already allow divorced-and-remarried couples (with, say, young children together) to "live as brother and sister" for the sake of their children.

Now, this whole family/household is "founded on adultery" by your logic. And neither can we really get any sort of guarantee that the couple isn't continuing their sex life in private.

But the very attempt to salvage the imperfect/unideal family/household (for the children) under the often probably "winking" conceit that they might/could "live as brother and sister"...itself shows an attitude of recognizing that the relationship (even, the domestic life) abstracted from the sex acts themselves (as intertwined as the passions may become) is in itself something good and worth salvaging.

And, indeed, this must needs be true. Our condemnation is of acts and lusts. Not people, not identities, not communities, not relationships, not "lifestyles."

Can lust creep, like tendrils, into all the motivations and interpersonal dynamics of the love of which it has become a part, corrupting it? Of course. I certainly find it hard to see how two people who claim to love each other could "express" that love in mutually damning each other.

But, when we remove a lung to remove a cancer, we are not condemning the lung, we are condemning the cancer, and I think everyone would agree that the preferable course of action would be to try to save the lung and to target the cancer alone as precisely as possible rather than to cut out the whole organ IF possible.

AGustavoG said...

“I don't think you can separate the two. If they are of social benefit, then recognizing/enabling them legally is socially beneficial.”

Of course you can separate the two, we already do. You can, as we do, have a social environment where people are allowed to become friends, live together in the same house and support each other without institutionalizing it through contract. Again, what benefit would accrue if one were to formalize through contract arrangements that already function to the benefit of the partners and to the broader society?

(And incidentally, shifting your ground to “recognizing/enabling” from formally institutionalizing individual arrangements isn’t helpful in pursuing any conversion that wishes to remain intellectually honest.)

A Sinner said...

I don't see "recognizing" and "institutionalizing" as practically different. But "institutionalizing" is a strange word; it's not like Gay Couples are being made a Branch of Government.

Your use of "by contract" is also interesting. Because, obviously, people are ALREADY able to "officialize" their private agreements (regarding finances, mutual support, inheritance, decision-making) in private contracts. But, it seems a waste of time and resources to have a NEW private contract drawn up each time when you could just established a "pre-made contract" (ie, civil partnership) that people could register for.

If a de facto legal situation exists, it's just a lot more efficient to cut the hoop-jumping that exists only for theoretical ideological reasons.

A Sinner said...

The evolution of the term/concept "marriage" seems to go something like this:

At first, it was about uniting two extended families in a larger clan network.

To do this, the patriarchs of the two families in question would swap a daughter for a son, as it were, uniting the two families through the biological fact of common descendents or, at the very least, the fact that the two were a mating pair (the potential/virtual offspring creating kinship by the reciprocal obligations of legitimacy that would need to be maintained should any children come along).

Either the family of the groom paying for the daughter (brideprice) or the family of bride sending her with an endowment for her upkeep (dowry) depending on the current economic balance and so whether a woman was considered an asset or a burden.

It seems that in more stable times a woman was considered an asset. Only women have children, after all, and in stable times their might be more men than women (since women die in childbirth, etc) so men would pay a handsome price for a bride (for themselves or their son) to bear their progeny.

In less stables times they were considered more a burden since sons can spread their seed all over with very little cost, and in times of unrest their might be fewer men (since men die in war, etc). In this case, the family sending a daughter with a dowry was more like purchashing the son (though, obviously, it was constructed in a less chattel-like manner than with the daughter; really, they were purchasing access to a family lineage by offering the daughter to a man).

So that's the first stage in the evolution of marriage, it would seem: uniting two families through common descendents.

A Sinner said...

The next stage is when it became less about uniting two families, and more about uniting two individuals, though still through common descendents.

A voluntarist element is here introduced. No longer are the man and woman just nodes in a larger clan network to be paired up for the sake of the community, but are individuals seeking personal stability and companionship by establishing a (nuclear) family with a mate. Kinship is still established between the two through common descendents, but it serves to unite the individuals more than the whole families (who become "merely" the "in-laws").

Finally, in the past century or so, it has become almost entirely voluntarist. It is about uniting two people in kinship, not through biological descendents necessarily, but through sheer choice. One can argue about whether this provides the same sort of stability (likely not), but in itself it is no more terrible a leap than the first leap from the "uniting families" to the "uniting individuals" idea based on offspring.

After all, we have long had the concept of adoption, which creates kinship on purely voluntary terms. And other free-association commitments like "blood brotherhood" have existed in many cultures.

However, if the common descendent aspect has been "decentralized" as no longer the "cause" of the kinship, but rather a sort of additional institution taken on by some married couples, then it makes sense that same-sex couples would want to be recognized as married.

One has to assume, this desire is not merely unintelligible as it would be under previous understandings of marriage. It is a symptom, not a cause, of the fact that "marriage" is now understood primarily as the voluntary "sibling-in-law adoption" of two people to share a domestic life and partnership (which, in itself, is of course sex neutral).

Now, to be sure, those of us who value the generation of new life are going to see it as special and sacred, and are going to see unions that contain it as necessarily making it an essential or definitional feature, a "structural" feature.

So there is a subset of partnerships (or what the world is quickly referring to simply as "marriages") which is distinguished in a significant way by a very significant defining feature (that of mating).

I am not against validating other sorts of life partnerships (all other questions re: morality being equal). Nor am I against recognizing the very real analogies to marriage (whether that extends to extending the label or certain associated symbols is really something for popular linguistic usage to determine), which is indeed one type of life partnership.

However, let's recognize that not all life-partnerships/"marriages" are equal or absolutely equivalent. There is a subset that structurally contains a very significant and sacred feature that is not found in other sorts. Recognizing the analogy need not mean recognizing some sort of absolute equivalency or total levelling.

That subset is a natural institution, whereas the other sorts of life-partnerships are voluntary historically contingent constructs. But so what? Adoption is not a natural institution either, but a voluntary contingency, and yet it can be a very good thing indeed, and establish kinship (socially and emotionally if not biologically) and no one is questioning such families.

Christians who would deny all validity to any other sort of life-partnership, or who would recognize it without recognizing that there is a clear analogy to be made to marriage especially given what about marriage people find most salient in our culture today (even if the de-emphasis on child-rearing is itself problematic)...are being willfully naive, and probably bigoted.