When examined critically, Kant's views on sex and marriage give us the tools to defend same-sex marriage on moral grounds. The sexual objectification of one's partner can only be overcome when two people take responsibility for one another's overall well-being, and this commitment is enforced through legal coercion. Kant's views on the unnaturalness of homosexuality do not stand up to scrutiny, and he cannot (as he often tries to) restrict the purpose of sex to procreation. Kant himself rules out marriage (...) only when the partners cannot give themselves to one another equally – that is, if there is inequality of exchange. Because same-sex marriage would be between equals and would allow homosexuals to express their desire in a morally appropriate way, it ought to be legalized. (shrink)

Experience clearly suggests that most legal philosophers and ethicists are not surprised to be told that liberal states cannot permissibly prohibit same-sex marriage (henceforth: SSM). It is somewhat less clear just what the appropriate liberal strategy is and should be in defense of this thesis. Rather than try to defend SSM directly, I shall proceed indirectly by arguing that SSM prohibitions are indefensible on liberal grounds. Initially, I shall consider what I take to be the most powerful liberal argument against (...) SSM prohibitions and account for my reservations about it. Then, I shall propose an alternative argument with roots in constitutional law that since SSM prohibitions do not survive liberal scrutiny, they must be rejected. (shrink)

However liberalism is best understood, liberals typically seek to defend a wide range of liberty. Since same-sex marriage [henceforth: SSM] prohibitions limit the liberty of citizens, there is at least some reason to suppose that they are inconsistent with liberal commitments. But some have argued that it is the recognition of SSM—not its prohibition—that conflicts with liberalism’s commitments. I refer to the thesis that recognition of SSM is illiberal as “The Charge.” As a sympathetic liberal, I take The Charge seriously (...) enough to consider and ultimately reject it. Ultimately, I contend that The Charge is simply misguided and that arguments for it either fail to find support in some liberal principle or else find support from some illiberal principle. (shrink)

Even in secular and civil contexts, marriage retains sacramental connotations. Yet what moral significance does it have? This book examines its morally salient features - promise, commitment, care, and contract - with surprising results. In Part One, "De-Moralizing Marriage," essays on promise and commitment argue that we cannot promise to love and so wedding vows are (mostly) failed promises, and that marriage may be a poor commitment strategy. The book contends with the most influential philosophical accounts of the moral value (...) of marriage to argue that marriage has no inherent moral significance. Further, the special value accorded marriage sustains amatonormative discrimination - discrimination against non-amorous or non-exclusive caring relationships such as friendships, adult care networks, polyamorous groups, or urban tribes. The discussion raises issues of independent interest for the moral philosopher such as the possibilities and bounds of interpersonal moral obligations and the nature of commitment. The central argument of Part Two, "Democratizing Marriage," is that liberal reasons for recognizing same-sex marriage also require recognition of groups, polyamorists, polygamists, friends, urban tribes, and adult care networks. Political liberalism requires the disestablishment of monogamous amatonormative marriage. Under the constraints of public reason, a liberal state must refrain from basing law solely on moral or religious doctrines; but only such doctrines could furnish reason for restricting marriage to male-female couples or romantic love dyads. Restrictions on marriage should thus be minimized. But public reason can provide a strong rationale for minimal marriage: care, and social supports for care, are a matter of fundamental justice. Part Two also responds to challenges posed by property division on divorce, polygyny, and supporting parenting, and builds on critiques of marriage drawn from feminism, queer theory, and race theory. It argues, using the example of minimal marriage, for the compatibility of liberalism and feminism. (shrink)

This essay analyzes the coherency and reasonableness of legal restrictions against same-sex marriage. The population of focus is transgender individuals and their partners. Focusing on trans-marriage makes clear that the restriction of marriage to one man and one woman is misguided in that the law rests on the assumption that the categories of sex and gender comprise two disjoint, exhaustive, and unambiguous groupings. The primary argument here is not that the restrictions of same-sex marriage are harmful to certain transpersons who (...) participate in legal marriage, although they certainly are, but rather that this legal restriction fails to meet the minimum requirements of any reasonable law. This analysis compares the current marriage restriction and its reliance on the above mentioned false belief with judgments of the Race Classification Appeal Board of Apartheid era South Africa. I employ two actual cases and the legal philosophy of Lon L. Fuller in my argument. (shrink)

Alain Locke, an often neglected classical American Pragmatist, developed a pluralistic value theory as an antidote to the "value absolutism" he considered the root cause of social conflict. Values, for Locke, are not immutable features of a transcendent reality, but rather emerge from human functional attitudes, or what he calls "feeling-modes." However incommensurable the contextualized values of diverse cultures may appear, they can always be traced back to common modes of valuing. Recognizing the common character of our human faculty of (...) valuation allows us to see a basic functional equivalence among superficially conflicting values, thus undermining value absolutism. This paper suggests that one reason the debate over same-sex marriage in the United States has persisted is that the arguments have been advanced primarily in absolute value terms. Re-casting the debate in terms of a Lockean pluralistic value dialogue suggests a path out of the stalemate. (shrink)

When non-heterosexual spouses come out of the closet to their husbands or wives, attention is generally focused upon the non-heterosexual member of the relationship. He or she is often lauded for having the strength to openly acknowledge and pursue a central component of his or her personal identity.Although the attention is justified in many cases, left unexplained is how the heterosexual spouse was treated prior to the revelation. I argue that many heterosexual-non-heterosexual pairings involve spousal abuse. The maltreatment stems from (...) the deceived being treated as a mere means, and prevented from exercising her autonomy and receiving a nurturing marriage the heterosexual spouse expects and deserves. (shrink)

When non-heterosexual spouses come out of the closet to their husbands or wives, attention is generally focused upon the non-heterosexual member of the relationship. He or she is often lauded for having the strength to openly acknowledge and pursue a central component of his or her personal identity.Although the attention is justified in many cases, left unexplained is how the heterosexual spouse was treated prior to the revelation. I argue that many heterosexual-non-heterosexual pairings involve spousal abuse. The maltreatment stems from (...) the deceived being treated as a mere means, and prevented from exercising her autonomy and receiving a nurturing marriage the heterosexual spouse expects and deserves. (shrink)

This book is an introduction to philosophy of sex. The history of philosophy of sex is depicted (from Plato to Herman Schmitz) to set up the background against which the philosophy of sex by Herman Schmitz is analyzed. This leads to the discussion of topics like masturbation, the ontology of the sexed human body, and same-sex marriage.

: Gay marriage highlights a contradiction in American national identity: if gay marriage is supported, the normative status of the heterosexual nuclear family is undermined, while if not, the civil rights of homosexuals are undermined. This essay discusses the feminist dilemma of whether to support gay marriage to promote these individual civil rights or whether to critique marriage as a part of the patriarchal system that oppresses women.

In this paper I argue that anyone who accepts a Rawlsian account of justice should favor granting family-based immigration benefit to same-sex couples. I first provide a brief over-view of the most relevant aspects of Rawls's position, Justice as Fairness. I then explain why family-based immigration benefits are an important topic and one that everyone interested in immigration and justice must consider. I then show how same-sex couples are currently systematically excluded from the benefits that flow from family-based immigration rights. (...) Next I argue that people in the constitutional and legislative stages of Rawls's original position would act to protect family-based immigration rights for themselves and show how these rights are rights of the current citizens of a state to bring in certain outsiders and not rights of outsiders seeking to enter. Importantly, this argument takes place entirely within the bounds of Rawls's domestic theory of justice and does not make reference to his more controversial views found in his account of international justice. I then show that there is no acceptable reason to restrict these rights to opposite-sex couples and good reason to extend them to same-sex couples. Finally I consider two objections to my account and show why they do not threaten my conclusion. (shrink)

In this article I consider whether the legalization of sex-same marriage implies a right to incestuous marriage. I begin by suggesting that the liberal state get out of the 'marriage' business by leveling down to a universal civil union status. The question is then whether incestuous unions should be both legal and eligible for this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered (...) partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. (shrink)

Some critics of same-sex marriage allege that this kind of union not only betrays the nature of marriage but that it also opens children to various kinds of harm. Same-sex marriage is objectionable, on this view, in its nature and in its effects. A view of marriage as requiring an unassisted capacity to conceive children may be respect as one idea of marriage, but this view need not be understood as marriage itself. It is not clear, in any case, why (...) government should prefer this one idealized view of marriage over other others, so long as recognition of other kinds of marriage do not stand in the way of government carrying out its core interests, such as the protection of children. The idea that children are necessarily harmed when conceived by and for same-sex couples cannot be sustained as a matter of psychological evidence or moral argument. No research shows that such children are routinely harmed or rarely-but-catastrophically. Comparative accounts of the welfare of children of same-sex couples cannot show either that children must be brought into existence only under ideal circumstances. (shrink)

The paper argues that same-sex marriage ought to be legalized. The argument is ecumenical and appeals only to basic principles of liberal government. Specifically, the paper argues that if the government is offering an opportunity to one group, then it may not withhold the opportunity from another on the ground that the people receiving it are immoral or that their receipt of the opportunity would spread immoral messages. The only acceptable ground is that the group’s receipt would cause wrongful harm (...) to third-parties that would outweigh the benefits. Same-sex marriage would not do so, and thus it must to be allowed. As part of this argument, the paper addresses the popular stamp-of-approval and defense-of-marriage arguments against same-sex marriage. (shrink)

In recent years, the Netherlands, Belgium, Canada, and Spain have recognized marriages between people of the same sex. Several other countries recognize civil unions with similar legal effect. An even wider range of countries have laws against discrimination on the basis of a person’s sexual orientation, in areas like housing and employment. Yet in the world’s largest democracy, India, sex between two men remains a crime punishable, according to statute, by imprisonment for life.

This paper defends a legal and political conception of sexual relations grounded in Kant’s Doctrine of Right. First, I argue that only a lack of consent can make a sexual deed wrong in the legal sense. Second, I demonstrate why all other legal constraints on sexual practices in a just society are legal constraints on seemingly unrelated public institutions. I explain the way in which the just state acts as a civil guardian for domestic relations and as a civil guarantor (...) for private property and contract relations—and thereby enables the existence of legally enforceable claims. Throughout the aim is to demonstrate that Kant’s relational conception of justice entails that legally enforceable claims regarding sexual deeds are fully justifiable only insofar as they are determined and enforced by a public authority that we may refer to as a liberal democratic welfare state. (shrink)

Some argue that same-sex marriage is not an equal rights issue because, where same-sex marriage is illegal, heterosexuals and homosexuals have the exact same right to marry—i.e., the right to marry one adult of the opposite sex. I dispute this argument by pointing out that while societies that prohibit same-sex marriage equally permit individual heterosexuals and homosexuals to marry one adult of the opposite sex, same-sex couples in such societies are denied an important right that opposite-sex couples enjoy—i.e., the right (...) to marry. I argue that the right to marry is fundamentally, not an individual right, but a couple’s collective right, analogous to assembly rights. (shrink)