Liberals don’t want the state to privilege heterosexual marriage—but gays and other sexual radicals want public recognition too
In December 2011 Nick Clegg delivered a lecture in Westminster under the auspices of the Open Society Foundation and the think-tank Demos. In it he spoke of “the values of the open society-social mobility; political pluralism; civil liberties; democracy; internationalism” as being “the source of my liberalism” and then set out his own vision of what society should be like. Having observed that “social institutions can be oppressive” and that “the constitution of my party warns that people can be enslaved not only by ignorance and poverty, but also by conformity” he proceeded:
The institutions of our society are constantly evolving. Just look at the way the roles of men and women, and attitudes to marriage and divorce, have changed over the last century. We should not take a particular version of the family institution, such as the 1950s model of suit-wearing, bread-winning dad and aproned, homemaking mother-and try and preserve it in aspic . . . that’s why open society liberals do not agree that the state should use the tax system to encourage a particular family form . . . Open society liberals are progressive: we believe that the future can and ought to be better than the past.
Leaving aside the rhetorical aspects, it is worth considering the implicit liberal attitude to social institutions. Superficially, it might seem that what is proposed is that politics should simply follow the facts: accept whatever arrangements have evolved and be willing to change policies as and when they have fallen behind social developments. That, however, cannot be what is intended since some directions of development may be at odds with and even hostile to the favoured values of mobility, pluralism, liberties, democracy and internationalism. Moreover, there are questions as to what the facts are, which among them are relevant, and what the role of past policies has been in producing them.
A deeper interpretation, therefore, is that Clegg takes liberal values to be incompatible with certain kinds of social arrangements, or at odds with the state endorsing and supporting them, and these include a traditional understanding of marriage and the family. This reading, however, points to the paradox of progressive liberalism: on the one hand advancing a liberal social programme; on the other rejecting the right of the state to promote or protect particular social forms, such as the traditional family.
Modern liberalism has difficulty finding a place for the societal good of such normative structures as the family, because of its commitment to neutrality between life-shaping values. At most it can register and even celebrate convergence in evaluations, seeing in this happy coincidence possibilities for establishing and extending a social consensus. However, the liberal idea of social members as free and equal persons remains individualistic: the good of persons that results from their participation in social orders regulated by this notion of political justice is a private one. This fact is sometimes overlooked on account of the regulated order being a public good or shared benefit; but therein lies a lesson: public good does not equal common good or a common set of values.
I want to consider further the issue of marriage and the family mindful of the facts that, as Clegg observes, this form of association is changing and that it has become a subject of much public discussion and some significant dispute. Of course, not all marriages lead to or involve the having and rearing of children or the care of parents, and not all families are joined by bonds of matrimony. Nonetheless there are strong connections between marriage and family life. Common experience and an increasing body of empirical research tells us that it matters that children are raised in a family context, and that it is best for a child if this consists of a mother and father, ideally supplemented by male and female of older generations and by siblings. Evidently these considerations bear on the issue of same-sex and and polyamorous households and so connect with current debates about the legal recognition of sexual partnerships.
In the 1980s and 1990s the policy issues that seemed most pressing upon family life were ones concerning divorce and children’s rights (also certain economic measures to do with welfare benefits). More recently the strongest challenge is that posed by “alternative sexual lifestyles”. Along with abortion, sexuality has become one of the main issues of contention between traditional morality and politics, and the moral and social philosophy of liberal pluralism. Although a range of matters is in contention, the most prominent is the issue of homosexual practice and its recognition by the state. It is only relatively recently that homosexual relations have been decriminalised in many Western societies: 1967 in England and Wales, 1969 in Canada, 1980 in Scotland, 1982 in Northern Ireland, 1986 in New Zealand, and in some they are still illegal. Yet in many of the states where homosexual activity was once prohibited, legal rights are now bestowed on homosexual partners and there are increasingly determined calls to extend the institution of marriage to them, which several legislatures have done, including Belgium, Canada, Portugal, Spain and Sweden.
For those liberals who uphold the moral neutrality of the state this latter prospect can be perplexing. For on the one hand while they do not believe that it is for the state to proscribe sexual practice on moral grounds, nor do they believe that it should endorse, let alone prescribe, forms of sexual union as expressions of moral values. Yet this latter is precisely the basis on which some gay, lesbian and transgendered activists seek the extension of marriage to homosexual and transgendered partners. In this respect at least they share with the traditional defenders of heterosexual marriage a common belief in the value of publicly recognised partnerships.
What the advocate of traditional ethical reasoning has to say about this matter will depend on what he or she believes about human nature and the goods that contribute to or constitute its flourishing. What is generally and unsurprisingly the case, however, is that most proponents of “natural law” reasoning take a socially conservative position. According to such reasoning, judgments as to the moral acceptability of sexual practices must be linked to an understanding of the proper role of sex in human life. Sexual activity is defined by function and its (primary) function is that of reproduction. What follows is that the definitive use of sexual organs is inter-sexual, i.e. between male and female, and for the sake of procreation. This is not to say, however, that the only function of sex or of the sexual organs is to reproduce. Sex obviously gives pleasure and serves to express and deepen emotional bonds as well as to effect an uniquely intimate union between distinct but complementary psychophysical natures; but these features are located within the framework of its primary, reproductive function. Something of this plurality is invoked by the philosopher Sir Anthony Kenny, who argued in his book What I Believe that homosexuality is a form of disability or handicap.
Suppose, then, that a natural law theorist believes homosexual practice to be contrary to the proper role of sexuality, and thus at odds with right reason, what should follow so far as policy is concerned given the fact that this opinion is now widely contested? Here it may be useful to recall a real case in which, as with same-sex marriage, moral and political views on these issues have been in heated conflict. In 1988 the Conservative administration of Margaret Thatcher enacted local government legislation containing the following clause, known universally as Section 28:
A local authority shall not (a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality; or (b) promote the teaching of homosexuality as a pretended family relationship. (Local Government Act, 1988, Section 28.)
This was introduced in legislation designed to curb what were represented as doctrinaire policies then being advanced, and sometimes implemented, by political activists particularly in London. The general legislation was contested by the parliamentary opposition, and the clause was viewed with some disquiet by others, but it was presented as part of a general restraint on policies for which the public appeared to have little if any sympathy. In fact, the dominant feeling, then as now, was probably one of wishing not to know what people do in private so long as it is not contrary to the well-being or interests of others.
Following the election of New Labour in 1997, several moves were made to repeal Section 28. While they were ultimately successful (new legislation omitting the clause was passed in September 2003), along the way they met with considerable opposition from various quarters including many leaders of the Christian, Jewish and Islamic faiths — all traditions in which natural law ethics has had an influence. On the other side of the debate the proponents of repeal divided into three broad groups. First, liberals of the sort who do not believe that it is the business of law either to promote or to prohibit behaviour on moral grounds. Second, advocates of alternative sexualities who insist that the state has a responsibility to encourage attitudes and actions favourable to these sexualities; not in the sense of teaching people to adopt them, but of teaching them to affirm or even to celebrate them. Third, moral conservatives who, while not favouring the neutral state, were unhappy about the way in which matters of sexual morality are now dealt with.
There was certainly ground for complaint that the clause was discriminatory in singling out one particular sexual group. So far as public opinion is concerned it is hard to suppose that those who maintain the moral superiority of heterosexual over homosexual activity would be happy to have local authorities promote heterosexual sadomasochism or fetishism or hetero-polyamory. And if that is not the case then the charge of unfairness commonly levelled against opponents of the repeal of Section 28 begins to look justified.
What is in fact the case, however, is that most people do not want local authorities or schools to promote, recommend or celebrate any particular form of sexual activity, though recent polling suggests that they would be happy and indeed wish to see heterosexual marriage, or at least stable, domestic heterosexual family life presented as a desirable norm.
Clearly, though, this would be unacceptable to sexual radicals. Moreover, they are likely to regard mere social toleration of homosexuality (or of other alternatives) as insufficient, noting correctly that toleration is compatible with moral disapproval. But approval cannot be coerced, and it is evident that the majority do not regard all forms of sexual activity as equally valid. If pressed as to why, they will usually speak in terms of what is “normal” or “natural”, i.e. according to proper function. Of course, such reasoning is unlikely to persuade those who maintain the moral equivalence of all non-coercive forms of sexual lifestyle. To date the primary focus has been on two-person, same-sex unions but the claims of polyamourous groups and incestuous partners are also beginning to be pressed.
Against this background of fundamental moral disagreement the liberal idea of state neutrality may have some appeal. But it is neither practical, nor consistent with non-neutralist views of the state. For advocates of natural law, traditional liberal and common good theories of political society, morality does and should constrain the public sphere in so far as policies bear upon basic rights and interests. The state exists in part to promote the good of society as a whole, and more fundamentally to protect its members’ interests from harm or injury arising from the actions of others. On this at least social conservatives and radicals are likely to agree.
How then to proceed? On the one hand, discrimination in law on the basis of private, consensual sexual practice is hard to justify and impossible to implement. On the other hand, society has a right to expect its commonly shared interests to be protected, and these include the norm of two-person, non-incestuous, heterosexual marriage, particularly as that bears upon the needs and formation of children. Reasoning about what policies it is rational for an individual or a government to pursue has to be related to the question of what burdens and harms arise from the effort to encourage or to enforce any given option. Here it may be useful to make the distinction between value-promoting and value-protecting policies. Natural-law based legislation will seek to protect the good of heterosexual union open to procreation and it will not promote forms of union other than this. Equally, however, where there is strong demand for alternatives it will consider the cost of opposing this, and where that seems too great in its impact upon civil order and the common good it may elect to tolerate what it cannot endorse.
As Nick Clegg observed, however, and as I have agreed, issues of marriage and the family are subject to social change and it is hard to say where matters currently stand empirically and psychologically, and harder still to predict how they may change in the next few decades. Accordingly politicians and political thinkers need to look hard at sociological as well as anthropological data and resist the temptation to resolve matters on a wholly a priori basis. To acknowledge that, however, is not to say, as Clegg’s words might be taken to suggest, that there is nothing to be thought or said beyond observing change — and welcoming or regretting it.
The aim of politics is the promotion and protection of certain social goods, and an emphasis on the rights and liberties of citizens risks overlooking the welfare and interests of the community, including those of its fledgling members, children. Notice that even in caricaturing the 1950s model of marriage and the family, Nick Clegg speaks of the “bread-winning dad” and the “homemaking mother”. Perhaps this is an unintended compliment to the virtues involved in co-operatively orienting one’s life to the interests of others. Certainly it stands in contrast to a contemporary image of adults asserting their right to have marriage redefined to accommodate themselves without regard to the natural facts of life and the natural needs of children. Which then seems the more caring and generous picture and which the more conducive to the good of society?