The Verdict of Reason

By Nathanael Smith

The Verdict of Reason explains why same-sex "marriage" can't be the real thing and shouldn't be recognized in law. 

 

Part I focuses on the limited task of showing that there is a rational basis for recognizing only marriage between a man and a woman. Marriage is a way of binding oneself. Society does not recognize in individuals an unlimited power to bind themselves. Sometimes it makes promises and contracts legally binding and requires people to fulfill them. Sometimes it leaves people free to walk away from promises without legal consequences. Two reasons for choosing to recognize some promises as legally binding and not others are (a) tradition, and (b) "telos," the Aristotelian word for purpose or natural flourishing. Natural flourishing is best understood today in light of sociobiology, also known as "evolutionary psychology," and it includes instincts oriented towards reproduction. Both of these factors favor recognition of straight marriage, but not same-sex "marriage." So it's rational to treat them differently.

 

Part II, more ambitiously, works out a definition of marriage. The starting place for the argument is an understanding of men, women, and their differences in light of sociobiology. The asymmetric desires and jealousies of men and women give rise to perilous genetic conflicts of interest, leading to exploitation and misery. But they are also capable of coming together in a union of genetic interests that results in a harmony of instincts. That's why marriage should be permanent and exclusive. Historically, while marital customs have changed, there has been a consistent core meaning, namely: marriage is a publicly acknowledged relationship, more or less permanent, between a man and a woman, such that sex can occur between them without dishonor to the woman. That definition is consistent with polygamy, which has been practiced in most human societies. But Christianity imposed monogamy on marriage and made the obligation of sexual fidelity reciprocal. Marriage is perfected by romantic love, which sublimates the harmony of instincts. For same-sex couples, different instincts are in play, resulting in different moral obligations. Same-sex relationships cannot be the same thing as marriage.

• Language: English
• Publisher: Nathanael Smith
• Release date: Apr 26, 2023
• ISBN: 9781981209309

Nathanael Smith

Nathan Smith is an Orthodox Christian, who loves to write, and who lives with his wife and three children (at the time of writing) in beautiful central Maine. He is the author of songs, poems and stories. He hopes his writings will glorify God, edify Christians, and open the eyes of unbelievers to God’s redeeming truth.

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Introduction

Let me begin this book by partially apologizing for its rather arrogant title, and offering clarification. The verdict of reason was originally meant more narrowly than the subtitle would suggest. What I intended to say was not that it is the verdict of reason that gay marriage cannot be the real thing and should not be recognized in law, but merely that there is a rational basis for legally recognizing only marriage between a man and a woman. That much, at least, reason clearly compels us to accept. It is the verdict of reason, and there can be no dissent: I can assert that freely, boldly, arrogantly if you like. Past generations would have been, and I trust that future generations will be, amazed that a book could be devoted to arguing that there is a rational basis for recognizing marriage as only between a man and a woman, just as we would be amazed if we learned of a past or future author writing a book arguing that it is not crazy to eat eggs for breakfast, or that a person who wears a blue shirt should not necessarily be committed to the insane asylum. The sensible position for advocates of gay marriage to take is that of course there is a rational basis for opposing gay marriage, but that the rational basis for supporting gay marriage (and I will happily grant that there is a rational basis for that position, too) is stronger. That should hardly be a painful concession for gay marriage advocates to make.

Yet several courts have had to commit themselves to the ridiculous view that there is no rational basis for opposing gay marriage. They have had to do so because of a certain curiosum in our constitution, namely that through the doctrine of judicial review (not in the Constitution itself but established by Supreme Court cases like Marbury v. Madison), it inadvertently granted judges more or less dictatorial powers, but only if they lie about what the law means. When fashionable opinion took a liking to gay marriage, certain judges found themselves in the difficult position of being called on to enforce laws they did not like. It turned out that while they were normally required to enact the statutes of democratic legislatures, there were precedents for overturning such statutes if they lacked any rational basis whatsoever. So certain courts imposed the reform du jour in a maximally absurd and insulting way, insisting that the historic definition of marriage, backed by various democratic majorities, was entirely irrational and motivated by a bare desire to harm. I like to give people the benefit of the doubt, and in this case, the most charitable view seems to be to give the judges credit for insincerity, since otherwise I would have to allege an enormous deficit of logical and imaginative faculties. In the fashion of Platonic guardians, they are using a noble lie to advance what they see as the cause of justice.

Many recent polls and a few recent elections show that public opinion seems to be shifting, and gay marriage may in due course be instituted through legitimate democratic channels. I regard this shift in public opinion with dismay, but it might have one positive side-effect, namely, that the judicial affectation about no rational basis, having become needless, may be quietly forgotten. The triumphant gay marriage movement just might have the decency to be embarrassed by the silly arguments their allies formerly used in courts. Advocates of gay marriage may come to admit the first thesis of this book, namely, that it is the clear and inescapable Verdict of Reason that a rational basis for opposing gay marriage exists, and courts that have held otherwise painted themselves into an indefensible corner; but (they will add) gay marriage has won at the ballot box, so it is the law of the land now, and if there are embarrassing episodes in the judicial history of the cause, well, let’s let bygones by bygones. In that case, our society will have taken a wrong turn, but it will have been spared some of the intellectual degradation and public incivility which at present is one of the side-effects of the way gay marriage has been imposed through the courts. If my book can help bring that about, by accomplishing the easy task of proving beyond any possible doubt that a rational basis for opposing gay marriage exists, it will have done good service.

This proof is contained in Chapters 1 through 4 of the book, and readers should bear in mind how small my task in those chapters is. For in order to kill the charge of no rational basis, all I need to do is avoid being convicted of complete irrationality. If readers say, I can see what you mean, that’s plausible, but my thoughts and values lead me to a different place, then I win: a rational basis, even if possibly insufficient, exists. In a nutshell, the argument is as follows. Marriage is a form of self-binding, the limiting of future selves’ freedoms by the choices of present selves. We recognize people’s right to bind themselves, but not without limit: people cannot sell themselves into slavery, for starters. In choosing which forms of self-binding to recognize, we are guided by telos—our understanding of human purposes and peculiar flourishing, which must be understood to include procreation—and tradition, which carries forward the lessons of human experience, creates a stable environment in which people can plan their lives, and helps people to understand one another. To allow people to marry is to allow their present selves to impose legal obligations on their future selves, and this should not be done lightly. It needs reasons. Some of the reasons that we allow straight people to marry, such as sexual love and economic interdependence, seem to cross-apply to gays, but others, such as procreation and tradition, do not. The case for straight marriage is therefore clearly stronger than the case for gay marriage, and the latter may not be sufficient to overcome the presumption in favor of liberty, spontaneity, and autonomy, that should and does make us reluctant to recognize rights of self-binding in many other cases. Chapters 5 and 6 provide further rational bases for opposing gay marriage, from the welfare of children and from public finance concerns, but with respect to the book’s first thesis, they are just running up the score. The verdict of reason on whether there is a rational basis for opposing gay marriage has been established by the end of Chapter 4. There is.

The argument against gay marriage from limited self-binding in Chapters 1-4 is the most distinctive contribution this book makes to the gay marriage debate. As far as I know, it is new. It emerged from a line of thought I touched on briefly in this passage from my first (single-authored) book, Principles of a Free Society:

Contract: relinquishing rights

In some cases, natural rights can be voluntarily relinquished by an individual if he sees some advantage from doing so. If someone walks up to me on the street and begins punching me, that is a violation of my rights. But if I engage in boxing as a sport, my rights (and those of my opponent) are not violated, because we have voluntarily given up, for the duration of the match and vis-a-vis one other person, the right not to be punched. To that extent the right not to be punched is alienable, but not all rights are.

Usury, slavery, and the limits of contract

Slavery usually comes about by capture, conquest, or birth into a servile station, and slavery that originates in any of these ways is clearly contrary to natural rights. But slavery can occur by consent, too. If A is starving, and B offers him food in return for his agreeing to be B’s slave, A might rationally consent to the arrangement. Also, if A plans a large entrepreneurial venture, of the success of which he is highly confident, but which he cannot raise sufficient capital to finance, he might, if permitted, use himself as collateral, borrowing from B with the promise to become B’s slave if his venture fails and he is unable to repay.

It is generally held in democracies today that a certain basic liberty is inalienable, so that people cannot sell themselves into slavery. Why this is right may be seen if we divide the individual self into time-slices of arbitrarily small length, in which case the question of what contracts should be regarded as valid turns into the question of what rights present selves should have over future selves. To prohibit slavery based on ex ante consent is to say that the rights of present over future selves should not be absolute and unlimited. Bankruptcy laws and laws against usury, too, are means of protecting the rights of future selves against present ones.

In the Middle Ages, there was a greater acceptance of voluntary servitude, and even in the English colonies in North America, indentured servitude, whereby someone contracted to do several years of forced labor in payment of a debt, was common. On the other hand, the medievals prohibited usury, by which they meant any kind of interest. We know now that there is no reason the rate of interest on loans should always be zero. On the other hand, contemporary American laws and policies have gone too far in the other direction, permitting and even—through subsidized student loans and the mortgage-interest tax deduction—encouraging people to become heavily indebted. Excessive indebtedness encouraged by government policy was a major cause of the 2008 financial crisis and subsequent economic meltdown. (Principles of a Free Society, p. 7)

Thinking about the foundations of a free society first forced me to notice how important is the question of self-binding, how different societies’ answers to it seem to be, and how little guidance the major current economic and ethical theories provide as we decide among these different answers to the question. The question of gay marriage, with its current political salience, seemed like a useful pretext for exploring it further, as well as an opportunity to rouse other people’s interest in self-binding. That is one reason why I wrote this book.

Readers might wonder, if my task—proving that there is a rational basis for opposing gay marriage—is as easy as I claim, why do I work so hard at it? Why do I think so deeply, cover so much ground, and exhibit considerable creativity and originality? Would a simpler and more straightforward argument have sufficed? Perhaps, though I have chosen the argument which I think will be the most compelling to the widest range of readers. At any rate, I learned from G.K. Chesterton that the defense of common sense against the wayward dreams, the pious sophistries, the fashionable presumptions and the unfathomable confusions—in short, the heresies—of a particular epoch, may require plenty of logical acumen, a strange, acrobatic mind, a lively imagination, and far-ranging arguments that recruit more or less the entirety of human nature and human history into the fight. To refute the latest fads and follies may require that one plumb the foundations of the world, then soar up to the heavens, then reconceive the universe, in shining detail, and in a new and wonderful way. (That’s why it’s so fun!) I doubt that a book could say anything worthwhile about gay marriage unless it were about much more than just gay marriage.

If Part I proves that (there is a rational basis for holding that) gay marriage.... should not be recognized in law, Part II vindicates the other part of the subtitle, showing that gay marriage cannot be the real thing. It does so by showing what marriage is. One way to put it is that I am restating and revising the thought of the new natural law school, of which Robert George is a leading light, on the foundations of evolutionary psychology (also known as sociobiology). I thought the argument was more original before I read Margaret Gallagher’s arguments in Debating Same-Sex Marriage. It turns out that I am not the first to draw on evolutionary psychology to pull the rug out from under the fancy that gay unions can be the same thing as marriages. Still, there is a residuum of original thought in my argument over and above what it shares with Gallagher’s. Mine contains a kind of manifesto about how evolutionary psychology can be integrated into the social sciences, and here again I am trying to use a current hot topic to get a hearing on a question of wider importance. The claim in the subtitle that gay marriage cannot be the real thing refers to the argument in Part II.

Which brings me to the clarification. A title like The Verdict of Reason invites the question what, then, is Reason? For purposes of Part I, I would answer: Whatever you like. It would be impossible to define reason in such a way as to exclude from the category of reason the argument made in Chapters 1 through 4, without totally eviscerating the term and alienating it completely from everyday use. By any normal, any tenable, any plausible, any practical, any familiar sense of the word reason, the argument offered in Chapters 1 through 4 is a rational argument. My message, therefore, to advocates of no rational basis is: You lose. Admit it. Unconditional surrender is the only choice. Reason decrees it. It is a menace to the sanity of our civilization to have people in power claiming that there is no rational basis for opposition to gay marriage. Our very ability to carry on democratic discourse is threatened by a situation in which half the population is alleging that the other half is totally irrational and motivated by a bare desire to harm. That profoundly offensive and amazingly ignorant opinion simply needs to disappear. To that extent, the arrogance of my title is intentional and appropriate. 

For purposes of Part II, however, I would have to define reason differently to make the title fit. Indeed, it is a bit unfortunate that my title and subtitle seem to commit me to the view that it is the verdict of reason [that] gay marriage cannot be the real thing. I suppose, after all, I would affirm that—I do not exactly think that I am overclaiming—but to do so, I would need to use reason in a broader sense than I am accustomed to, almost in a Thomist sense, akin to the way some of my Catholic friends use the word reason. If Part II were a separate book, I would have given it a different title. So much for my partial apology. The claim that marriage is a social construct such that society can choose to reconstruct it to include gay marriage, though I believe it is false, is far more respectable than the claim that there is no rational basis for opposing gay marriage.

Of gay marriage advocates generally, let me say this: they have, by and large, good intentions. Their principal motives seem to be empathy, compassion, an open-hearted generosity towards a group they vaguely presume to be victims. They want to help. They think they are working for a better world. They are confident that enlightenment, progress, reason, and sound ethics are on their side, and that their opponents are on the wrong side of history. They are strikingly incurious about the past, naively accepting a miserabilist view of all that has come before the past few decades of human history. In all this, they bear a strong resemblance to socialists a century ago. Despite, or rather (I suspect) because of, its good intentions, the public case for gay marriage is largely shallow, groundless, facile, and unserious. Advocates are too pious to notice obvious objections. Their well-intentioned definitions either fail to define or are clearly inconsistent with normal usage. Evidence is deployed scantily and selectively, to serve the cause rather than the truth. Arguments are rarely free of an element of emotional blackmail. Of the latter, my friend Joel Wilson requested that his comment on my book’s cover be quoted as an example:

At best, [your book] is condescending and unsolicited advice that you may think is helpful, but is really just annoying. At worst, it is an unprovoked attack that makes you look bad and may end up hurting people you don't even know... I will gladly stay on the sidelines [of this debate], along with the gays you have pushed there. They certainly don't have a friend in you.

Contra Joel, I trust that most gay people are mature and tolerant enough to be capable of friendships that bridge differences of opinion, as most of the rest of us are. This reminder may be in order, however: truth is truth, even if some people choose to be offended by it. Anyway, the point is that remarks like this—and let me add that emotional blackmail does not appear in such a crude form in the best pro-gay marriage writings—are not conducive to rational discussion. All in all, the case for gay marriage is a hothouse flower that can only survive in an artificially modern climate of discourse, where glass walls of political correctness shut out the bracing winds of human experience and critical thinking. In this book, I have not tried very hard to respond to it. Instead, I make my own case for marriage, and the proper scope of marriage becomes evident in the process. But now and then, I will spar directly with representatives of the other side, such as Jonathan Rauch, or the California Supreme Court.

I think the topic of gay marriage is somewhat understudied relative to its importance. Still, there are many other books about it, a handful of which I have read through, others of which I have read the free samples available via Amazon Kindle, and I may as well try to give readers an idea of where The Verdict of Reason fits in.

Some books, such as Erwin W. Lutzer’s The Truth About Same-Sex Marriage: 6 Things You Should Know About What’s Really at Stake, seem to oppose gay marriage from premises derived from Christian revelation. Interestingly, others, like God’s Gay Agenda by Sandra Turnbull and God Believes in Love: Straight Talk About Gay Marriage by Gene Robinson, support gay marriage from a religious perspective. I have a schizophrenic reaction to the last two books. As a rationalist, I am outraged that someone could take such an inconsistent position, affirming at the same time (a) the Christian religion, and (b) a cause which that religion clearly rejects in all its Scriptures and traditions. As a Christian, I take a gentler view. I am glad that a certain misguided obsession has not yet wholly alienated Robinson and Turnbull from God, and I hope that through faith, prayer, and study of the Scriptures, or simply by thinking clearly, they may return someday to the fullness of Christian truth. Anyway, I assume that both these kinds of books are in a sense irrelevant to the public debate, which must include people of many religions and people of no religion, and thus must limit its premises to those which are rationally accessible to all.

The most influential secular writer on gay marriage is Andrew Sullivan, but Sullivan is a prose stylist of genius rather than a serious thinker. For example, he seems to fall completely for the spurious analogy between interracial and gay marriage, which other writers on his side use more sparingly and with an awareness of its weaknesses. I assume Sullivan persuades many people, but not by reason. Rather, his scintillating prose makes the cause seem cool, exciting, even, as it were, addictive. Jonathan Rauch, author of Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America, has better arguments, and in this book I use him as the chief representative of the other side. John Corvino, in Debating Same-Sex Marriage of which he and Margaret Gallagher (a gay marriage opponent) are co-authors, also presents good (but similar) arguments, and Corvino might have served equally well as my chosen spokesman for the gay marriage cause. Also notable is M.V. Lee Badgett’s When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage. It appears to be an empirical (in some fashion) study of the effect of gay marriage in Europe, by a trained economist, but the Kindle sample did not give enough encouraging details about methodology to make me want to buy the rest of the book, so I cannot say whether Badgett had appropriate data to support her claim that gay marriage has none of the negative externalities alleged in the writings of social conservatives. There also seems to be a stratum of books like Nathan Timmel’s Same Same: Why Gay Doesn’t Matter, which make arguments like the following, quoted here for the amusement of readers:

One thing witnessing homosexuality didn’t do was create either anxiety or any peer pressure in me. I didn’t... as some say accepting homosexuality will do... feel like holding hands with a boy myself. Though others around me were acting in a certain manner, I didn’t feel the need to gay it up just to fit in... According to mouth-breathers worldwide, homosexuals have a conscription policy. Like Uncle Sam, they want YOU. The fearful and ignorant preach and complain about recruitment, which is beyond silly. I’ve never had a homosexual knock on my door and offer me a pamphlet, but many a religious fanatic have [sic] shown up at my house with a false smile, shouting, What you believe is wrong! Repent!... Gay enlistment simply does not happen. Expanding the religious flock, however, is preached from every pulpit. Life is funny in that it is rife with hypocrisy; the people pointing fingers and lobbing accusations are usually those actually guilty of the infractions they cry so loudly against.

I thought about this for a while, trying to imagine a moral perspective from which it could be regarded as hypocrisy to fear and oppose homosexual recruitment, while favoring Christian proselytizing. The best guess I could come up with is some kind of utterly nonjudgmental hyper-individualism, in which not only coercion but even persuasion is regarded as a kind of unacceptable aggression. It is a moral worldview in which reason could have no place. By contrast, we should all be grateful for gay marriage advocates like Rauch and Corvino, whom one can meet and make contact with on the level playing field of reason.

Among the opponents of gay marriage, the most prominent are Robert George, Sherif Girgis, and Ryan Anderson, arguments from whose book What is Marriage? A Man and a Woman. A Defense I borrow, and somewhat repurpose, in my Chapter 10. I like their book, but I find the metaphysical underpinnings of their natural law argument mysterious. Whether they will be grateful to me for supplying my own metaphysical underpinnings, derived from evolutionary psychology, for natural law vis-a-vis sexuality, or whether they will feel quite the reverse, I am curious to discover. It is odd that their book does not address polygamy, which seems necessary if one is to offer a definition of marriage universal in scope, as they purport to do. David Blankenhorn’s The Future of Marriage is a powerful statement of one argument against gay marriage, namely that marriage plays an indispensable role in the rearing of children, and gay marriage threatens to deinstitutionalize marriage and thereby harm children. Blankenhorn has since recanted. He now tentatively supports gay marriage, deferring to an emerging consensus between national elites and young people, in the context of which he hopes to strengthen marriage as a pro-child institution. That leaves his book somewhat in limbo. The argument overlaps considerably with George et al. and with Margaret Gallagher in Debating Same-Sex Marriage, but I can understand Blankenhorn’s recantation. If I thought the only reason to oppose same-sex marriage were that it would deinstitutionalize marriage and thus harm children, I am not sure which side I would be on. It is a very important consideration, but the causal links are somewhat tenuous. I share the concern, but oppose gay marriage mainly for other reasons.

Most gay marriage books tell a little of the authors’ personal stories. Mine is less relevant than those of some other writers, since my view on gay marriage has nothing in particular to do with my personal story. Perhaps I do have one personal bias: Christianity did prevent me from uncritically accepting the new politically correct opinions, and forced me to think things through for myself. Possibly, had I not been a churchgoer, I would never have thought through the issue carefully, as most of the casual converts to the gay marriage cause seem not to have done. But no church I went to particularly stressed its opposition to gay marriage when I was there, and one, a liberal Methodist church in the Northeast, actually made its members stand up in church and recite, in unison, a pro-gay marriage statement, as if it were the Apostles’ Creed. I have never before or since witnessed such a display of ideological compulsion, and I found it deeply troubling, but I do not think even that influenced me much. My disbelief in gay marriage is based on reason, mostly on the arguments presented in the chapters of this book.

Some people’s views on gay marriage are influenced by personal acquaintances with gay people. Here are mine. First, a woman I knew in graduate school was brilliant, sensitive and sensible, generous enough to have a higher opinion of me than I ever felt I deserved, and considered herself lesbian. We had a lot of enriching discussions of politics, not mere partisan bickering, but a search for understanding. I think we influenced each other. I stayed in her house once while visiting Europe. She has since married a man. One close (female) relative of mine dated a guy who had some previous homosexual experience. Does sexual orientation change over time? The media never seems to say so, nor does the possibility get much mention in the public debate, yet I have encountered two cases of it personally.

I had some gay friends in college. It did not matter too much: they were just one of the guys, with an interesting hobby. Sometimes it took me a while to find out. But a certain incident sticks in my memory. A bunch of us were going to a gay bar, most of us straight, guests of one gay couple. I guess we were curious. Maybe the prospect of an evening in a gay bar was bringing out their gay side, or something. At any rate, one had done a favor of some sort for the other, and said that, in return:

You’d better put out tonight.

You’d better put out tonight. Now, that was the sort of thing my straight friends and I thought all the time. But we would never have said it. It bothered me. If I had heard a straight guy say it to a girl, I would have thought he was acting like a pig. We were not necessarily very moral, but there was, I think, a kind of code of chivalry among us, that a girl’s favors had to be given very consensually, not merely not under physical compulsion (obviously) but not under pressure, either. An explicit quid pro quo would degrade her. If I would think less of a straight man who said You’d better put out tonight, what about a gay man who said that? Should I think less of him, too? Or did the same rules not apply to them? There is a certain double standard in the way modern political correctness asks us to regard homosexuals. On the one hand, it says: They’re just like you, let them marry and be normal. On the other hand, it says: They’re different, don’t judge them. A similar issue arises when gays ask to be allowed to marry, but in practice, as many studies show, do not seem to want to be held to the standard of monogamy.

I have had a few encounters with furtive gay hook-up cultures. Once, while I was walking home along R Street to my apartment in a place called The Chastleton in Washington, D.C., a small, effeminate man appeared from the shadows, held my hand and asked me in a soft, rather high-pitched voice if he could stay in my place for the night. I could not understand at first whether he was propositioning me sexually or simply homeless, though it must have been the former. He seemed a strangely insubstantial person, like something out of a dream. I said no and walked on. On a train headed into Baku, Azerbaijan, a small man asked me in a strong Azeri accent, Are you gay? I thought his English was bad and he did not know what he was saying, and answered in Russian, which most Azeris in Baku speak well. But he asked again in English, Are you gay? When I still didn’t understand, he wrote the phrase Are you gay? in English in the moisture that had collected on the train window. Another time, I was walking with a colleague along the shore of the Caspian Sea in Baku, and a man followed us, very meekly, asking sometimes if he could stay in our hotel room with us. We thought he was begging and offered him money but he refused it. We tried to dismiss him but were not quite rude enough to force the issue, and he followed us for quite a while. These incidents seem so odd that I would not quite trust my memory, were it not for having read statistics about the huge numbers of sexual partners some gay men have. If they are finding hundreds of sexual partners, a somewhat swift and indiscriminate matching process must be at work. The story fits. Of course, I do not mean to suggest that most gay men are like that.

The most curious incident occurred a few years later, on the night when I met the famous Andrew Sullivan, then one of my heroes. I had been an avid reader of his blog for years, but was disappointed in 2004 when he turned against the Bush administration. I suppose that detail dates the episode: it must have been the fall of 2004. Infatuated with punditry, I had created a personal website and posted a number of articles there, in