Written by Marcus Teo, Artwork by Hoo Yan Han
In the present work, I provide a defence of same-sex marriage. To these ends, I invoke two concepts to justify the right to marriage for same-sex couples: 1) the non-interference condition of liberty, and 2) the maximization of wellbeing. Given that both concepts are justifications for our presently-honoured laws, and are justificatory conditions for future laws, it follows that a policy that withstands the test of both concepts ought to, at least, be considered for endorsement. From this, I amalgamate both principles to derive a sufficient condition for when it is just to interfere with one’s liberty. From this, I argue that we have no rational reason to deny same-sex couples the right (and therefore freedom) to marry. Even in assuming the worst-case scenario that is a community of individuals who, by a vast majority, abhor same-sex marriage, I argue that this does not meet the sufficient condition for us to decide against respecting the right to marriage for same-sex couples.
That said, there is no reason to limit the discussion of these issues to a specific cultural context, although there are interesting differences between cultures around the world and their stances on the matter. For example, President Museveni (Uganda) signed a “Kill the Homosexuals” bill in 2014, criminalising homosexual actions in what seems to be the perception of homosexuality as a malum in se crime (Mitchell and Fries 12 – 13). Similarly, an important caveat to keep in mind is that this work operates only within the framework of the proposed sufficient condition. That is, should there be another morally relevant condition outside of the proposed sufficient condition that justifies our blocking of same-sex marriage, it is not within the scope of the present work to discuss it. Instead, I intend to explore the issue (and the existing sub-issues) of same-sex marriage only through the lens of the proposed sufficient condition.
The Sufficient Condition for Interference of Liberties
The first principle, derived from Rawlsian political philosophy, is the principle of liberty. Specifically, I refer to Rawls’ principle of equal liberty that “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system for all” (Rawls; as cited in Ladensen 49). As Ladensen reminds us in his article, this principle protects us from undue restrictions on our liberty, amongst which includes the protection from “undue interference with the attempt to express one’s beliefs and attitudes” (Ladensen 51).
As with any principle of justice, however, we ought to consider what Rawls means by “undue”. Here, I imagine that a plausible (if not only) sufficient condition to infringe upon one’s liberty is to prevent harm. That is, to justify anyone’s interference upon my actions, there ought to be a justification that such an interference occurs to prevent harm to others. J.S. Mill’s harm principle comes to mind. It reads that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill; as cited in Norris Turner 299). In the present context, then, we can extrapolate this principle to be as such:
The Non-Interference Condition of Liberty: The principle of liberty requires that we do not exert undue interferences upon others and their liberties, to the extent that they do not pose harms to others.
While the proper definition of “harm” in Mill’s context is debatable (see Norris Turner 299 – 326), I shall take “harm” to refer to any experience that reduces pleasure from physical, psychological, or social antecedents. Herein lies the application of welfare hedonism for the present work, such that our operationalisation of “harm” shall be derived from an account of welfare hedonism:
Normative Account of Welfare Hedonism: We ought to maximize rational happiness, where happiness is the positive value of rational pleasure minus rational pain.
It is important to note the condition in this account is rationality. I do not imagine that this condition is particularly contentious – without the rationality condition, the majority preferences of Nazi Germany to slaughter Jews would be justified because of the net positive amount of (HappinessGermans – PainJews). Here, the happiness felt by the Germans would not be rational, while the pain felt by the Jews would be rational. This account of welfare hedonism, thus, does not provide moral justification for Nazi Germany’s practices against Jews. As hinted at above, then, the only time it is justified that we interfere with an individual’s liberty is when it poses harms to others rationally.
Combining the two principles of justice as laid out before, then, we can derive a sufficient condition for an interference of one’s liberties:
Sufficient Condition for Interference of Liberties: An interference of liberty is just if, and only if, pursuit of this liberty poses a harm to others that does not maximize welfare.
Within the context of same-sex marriage, the rest of this work will argue that we are seldom, if not never, rationally justified in blocking the right to marry for same-sex couples because attempts to meet this sufficient condition are commonly empirically false or theoretically problematic.
The Sufficient Condition and Same-Sex Marriage
Bringing the sufficient condition back to the original context, there seems no rational reason by which we may morally block the legalisation of same-sex marriage. Applying the same parameters as would make a heteronormative marital contract permissible (i.e., that involved parties are not minors, that they enter the contract with consent, etc.), the only conceivable difference between a same-sex marriage and a heteronormative marriage concerns 1) the different composition of sexes within the contract, and 2) the fact that same-sex couples cannot, by themselves, bear biological children. Given these differences, it seems that the only reason for same-sex marriage to be illegal while heteronormative marriages are legal is that the morally relevant factor that satisfies the sufficient condition resides within these two differences. That is, if either (1) or (2) poses a rational harm to others outside of a same-sex marital contract that is significant enough to justify denying involved parties the pleasure of having their right to marry respected, then it is justified that we block their access to marriage. True to form, John Finnis’ work against homosexuality (Finnis 384 – 392) cites the Platonic view that “genital intercourse between spouses enables them to actualize and experience (and in that sense express) their marriage itself, as a single reality with two blessings (children and mutual affection)” (Finnis 385). This line adequately captures the nature of the problem: the morally relevant factor that targets the banning of same-sex marriage lies in the two differences. At this juncture, it is within the scope of this work to examine the two differences for any morally relevant factors that satisfy the sufficient condition.
The first difference between same-sex and heteronormative marriages is that the stakeholders in these contracts have different gender distributions. That is, a heteronormative marriage is one between a man and a woman while a same-sex marriage is one that is between two men or two women. Where, then, does the morally relevant factor lie? Maggie Gallagher (in LaFollette 729 – 744) argues that to allow same-sex marriage to propagate is to implicitly allow same-sex marriages to hold the same significance and levels of acceptability as heteronormative marriages, and that leads to problematic consequences. She thinks that legalising same-sex marriage requires “society at large to gut marriage of its central presumptions about family in order to accommodate a few adults’ desires” (Gallagher; in LaFollette 737). If Gallagher is right, then these provide justification for the banning of same-sex marriage – it leads to problematic consequences and while necessitating large costs of change, thereby satisfying the sufficient condition.
However, Gallagher’s position is one that is wrought with irrationality. Firstly, she implicitly assumes that according the same significance to a same-sex marriage as a heteronormative marriage necessitates bad outcomes. It is hard to see why. It seems to me that if a community legalises same-sex marriage, people who do not like gay marriage would, still, not get gay-married. Gallagher seems to tout social anarchy because of same-sex marriage; that people will suddenly make active decisions to enter same-sex marriages (assuming that people can choose to be non-heteronormative in the first place), ultimately leading to a dip in birth rates. In my (I assume) rational, heteronormative perspective, I do not see why is it that the legalisation of same-sex marriage discourages me in any way to pursue my own romantic affiliations. In fact, a study of the apparent deleterious effects that same-sex marriage legalisation would have on heteronormative marriage concluded that no such effect existed, and that rates of opposite-sex marriages are not affected in any way by the legalisation of same-sex unions including marriages (Dinno and Whitney 1). The cost-of-change argument, on the other hand, is even weaker. Costs of change are justified if the change brings benefit to the society in question. Her argument would hold water if we are trying to make Americans drive on the left side of the road – the cost of change outweighs the benefits of changing sides of the road. However, remember that we are discussing this within the context of liberties. It is absurd to argue that cost of change is a morally relevant factor here – would Gallagher argue that the cost of change away from Nazism is not justified by the preferences of Jews (incidentally a cultural minority in Nazi Germany) not to be slaughtered? It is for these reasons that I doubt that Gallagher’s arguments work in satisfying the sufficient condition – they are demonstrably irrational, and blatantly misinformed at best.
Gallagher also cites that children do best in a family of biological, opposite-sex parents in low-conflict marriages, taking this to be a case against same-sex marriage (Gallagher; as cited in LaFollette 730). If this is true, then Gallagher seems to have found a justification that satisfies the sufficient condition in blocking same-sex marriage. However, the truth of her statement and citations leave room for deliberation. In a technical report published by the American Academy of Paediatrics (2013; Perrin and Siegel e1374 – e1383) reports that the myriad of benefits that marriage brings to children, much like those cited by Gallagher, are independent of parental sexual orientation as long as they offer permanent nurturing and care. The report also extends its findings to say that “Marriage equality can help reduce social stigma faced by lesbian and gay parents and their children, thereby enhancing social stability, acceptance, and support” (Perrin and Siegel e1381). Golombok and colleagues (2014; 456 – 468), in their study of parent-child relationships and children’s psychological adjustment in adoptive gay-father families, go so far even to report that children in adoptive, two-father households experience more positive parental well-being and parenting from their fathers, and experience less externalising problems as compared to children in heteronormative families. Even considering Gallagher’s claims, then, it seems that we are not justified in using her claims to satisfy the sufficient condition – it is irrational to block liberties on uncertain reasoning.
The second difference revolves around the problem that same-sex couples cannot have their own biological children. Amongst the ranks of natural law theorists who think that non-heteronormativity is impermissible because it is “unnatural”, John Finnis (1994; as cited in Sandel, 1997; 384 – 392) cites that “the good of marital communion is an instrumental good, in the service of the procreation and education of children” (Finnis; as cited in Sandel 385). Here, the common sentiment is that same-sex marriage cannot be legitimate because it does not fulfil one of marriage’s most fundamental functions: to procreate (for an account against his claim on the service of “education of children”, see above arguments against Gallagher). This objection, however, is not very convincing. Firstly, to appeal to natural law is questionable – it is not a commonly accepted moral theory (and, in my opinion, for good reason). To appeal to a theory or entity (i.e., nature) that a good number of people do not accord moral power does not seem like good moral epistemology at all – it is absurd that I demand you provide a monthly monetary contribution to my pet dog if you do not even believe in the authority of said dog to begin with. Secondly, if it is the case that natural law can be invoked as moral justification, then it should follow that I can invoke natural law to argue that infertile heteronormative couples should not be allowed to marry, or that birth control methods are immoral, or that consumption of any non-naturally occurring technology should be outlawed. This is clearly absurd. The computer with which I am writing this work is not a naturally-occurring object, but a technology that I do not recall as touted to be negatively value-laden. In this case, then, even if the childbearing objection tries to satisfy the sufficient condition, it fails.
Same-Sex Couples and Children
At this juncture, I have explicated my thesis that attempts to block same-sex marriage fails in the face of the sufficient condition. Having established this, and assuming that I am right, an interesting question remains: should same-sex couples, upon marriage, be allowed to rear children? Employing the same sufficient condition, then, the only reason we have to block same-sex couples of their liberty to rear children is if their rearing of children necessarily causes harms to others that does not rationally maximize wellbeing.
I imagine that the answer here is straight-forward – allowing same-sex couples to adopt children maximizes wellbeing, and does not rationally harm others. As Richard Bradley eloquently explicates in his defence of same-sex adoptions,
“… children will be afforded the opportunity to maximize their utility through permanency, and homosexual parents and the general public can maximize their utility through the reallocation of assets away from the foster care market, given that more children are likely to be adopted once homosexuals are granted unfettered adoption rights. The reallocation of assets away from the foster care market increases social efficiency, which is desired by all.” (Bradley 133)
Bradley succinctly captures the defence of same-sex adoption. It maximizes wellbeing of children who would otherwise be orphans or in foster care, while maximizing wellbeing of same-sex couples who experience a desire to rear a child.
Nay-sayers (such as Gallagher) argue that orphans ought to be adopted by heteronormative parents, as that would lead to the best outcome for them. First, there remains questions of whether children are truly worse-off in non-heteronormative households because of their non-heteronormative parents. A sociological literature review done by Manning and colleagues purport that children residing within same-sex parent households fare just as well as opposite-sex parent households on all counts of well-being measures (Manning et al. 485). This leads us to question the clash of scientific literature here – how, and why, do the likes of Gallagher cite “scientific research” that claim that children ought to be raised in heteronormative families, while others like Manning et al. claim otherwise? The answer may lie in recentness. Gallagher’s paper was published in 2003 (LaFollette 764) while the one by Manning et al. was published in 2014. Given that research does not age like fine wine, I imagine the latter more epistemically valuable. Perhaps, too, the research that Gallagher cites contain confounding variables – in 2003, I imagine, children received more ridicule for coming from a non-heteronormative family unit, leading to lowered levels of overall wellbeing.
Even if we allowed Gallagher her premises and assumed that children are better-off in heteronormative family units, is it justified that we block same-sex couples’ liberties to adopt? The answer to this question is, still, no. This is because of the fact that there is a clear discrepancy between the number of heteronormative couples willing to adopt and the number of children there are up for adoption. While it would be optimal if we could leave all the orphans in the world to the care of heteronormative couples, this is clearly not the case. Too many sterile heteronormative couples prefer 1) not having children altogether, or 2) other methods of conception. Conversely, too little prefer adoption to these two options. In this case, then, would Gallagher argue that the leftover orphans are better-off left as orphans than to be adopted by same-sex parents?
Clearly, then, the sufficient condition is not met when it comes to denying non-heteronormative families the right to adoption. If anything, it seems like there is a stronger case for same-sex adoption than there is for same-sex marriage. Even in assuming the premises of those who oppose same-sex marriage, same-sex adoption still maximizes wellbeing, and does not pose harms that justify our interference with their liberties to adopt.
What If Everyone Does Not Want Same-Sex Marriage?
Having established the lack of theoretical justification for blocking same-sex marriage, there remains a popular question: should we still legalise same-sex marriage if a clear majority of a community abhors it? As I have emphasized earlier, the only reason that justifies (within the present work) blocking same-sex marriage is if it meets the sufficient condition.
Let us consider a hypothetical community C. Assume the following of C:
- That approximately 4% of the population are non-heteronormative.
- Within C, all members of the community whom are heteronormative think that same-sex marriage should not be legalised;
- All non-heteronormative individuals within C think that same-sex marriage should be legalised.
The question remains: given the clear majority of individuals who think that same-sex marriage should not be legalised, ought we, still, to legalise same-sex marriage? The answer to this lies in the sufficient condition. This in mind, the question rephrases to: given that 96% of people think that same-sex marriage should not be legalised, does this constitute enough rational moral power to meet the sufficient condition in blocking same-sex marriage?
Remember, here, that the sufficient condition reads that we are just in blocking an individual’s pursuit of liberty if, and only if, it brings harm to others that does not maximize welfare. It seems intuitive that the condition is met – the heteronormative majority is harmed by means of psychological discomfort if same-sex marriage is legalised, and because of their sheer numbers, the discomfort of 96% of the population surely drowns out the 4% of non-heteronormative individuals.
I think that there is room for deliberation of harms here, especially within the premise of rationality in the sufficient condition. I think that it is within this room for deliberation that justifies legalising same-sex marriage within C. Within the heteronormative population, regardless of their reasons, we must remember that the pursuit of same-sex marriage is the pursuit of a liberty that comes at no rational cost to the heteronormative population. As I have hinted earlier, the legalisation of same-sex marriage does little, if not nothing, to affect the daily lives of heteronormative individuals – and much less is it poised to threaten their pursuit of their heteronormative lives. Accordingly, I imagine it fair to speculate that the “harms” towards the heteronormative population is no more than an irrational negative-affect reaction. This is substantiated by evidence against Gallagher’s position presented above. Remember, here, that the irrationality of the majority preferences opens room for doubt on whether their preferences deserve to be taken as morally significant.
On the other hand, let us consider the non-heteronormative population of C. Unsurprisingly, there is existing literature focusing on the comparative effects of banning versus legalising same-sex marriage. In a study of US non-heteronormative individuals, it has been reported that for non-heteronormative individuals living in states wherein same-sex marriage is banned (the independent variable), these individuals experienced significantly higher levels of internalised homonegativity even after controlling for state-level political climates. Non-heteronormative individuals in the former also reported greater anxiety and lower levels of subjective wellbeing (Tatum 638). In a short article on the psychiatric effects of legalising same-sex marriage, Steven Moffic (2014; pp. 1) also argues that legalising same-sex marriage brings about a reduction of destructive psychiatric and physical effects from stigma prohibiting same-sex marriage, increase in wellbeing for children who will prospectively be adopted by same-sex couples, and psychiatric benefits of acceptance by government institutions.
Here, it is evident that the irrational “harms” that would befall the heteronormative population of C does not outweigh the rational pleasure accrued by the non-heteronormative. While the negative effects towards the heteronormative population is irrational, the positive effects towards the non-heteronormative tells a wholly different story – it tells a story of drastically increasing overall wellbeing, decreasing internalised negative affect of non-heteronormative sexual orientations. Even if the non-heteronormative population makes up a mere 4% of the population, it seems here that we cannot justify interfering with the liberties of said 4% for reasons that are unsatisfactory through the lens of the sufficient condition. It clearly is the case that satisfying the irrational preferences of the 96% cannot justify interfering with the liberties of the 4%, and screams tyranny of the majority.
The present work has shown, with the conception of a sufficient condition for the interference of liberties, that we have no rational reason to interfere with a same-sex couple’s liberty to marry and their liberty to adopt children. This is accordingly so even if they belonged to a community comprising of a clear majority that did not want same-sex marriage to be legalised. In the above, it is clear that arguments against any of the three conclusions listed here are misinformed, irrational, and therefore irrelevant. Because of this, the sufficient condition stands in protecting the liberties of same-sex couples. Perhaps, then, it is high time that unnecessarily harmful legislations be lifted, and we carry on with our individual liberties and our pursuits of happiness.
 For the sake of prudence, I assume that marriages are committal, monogamous, and exclusive. I will also use the terms “gender” and “sex” interchangeably because the delineating differences are not relevant to the present work.
 The construct of externalising behaviour problems refers to a grouping of behaviour problems that are manifested in children’s outward behaviour and reflect the child negatively acting on the external environment (Campbell, Shaw, & Gilliom, 2000; Eisenberg et al., 2001; as cited in Liu, “Childhood Externalizing Behaviour: Theory and Implications”)
 Data adapted from Gary Gates’ review of the USA from the UCLA Williams Institute (2011; “How many people are lesbian, gay, bisexual, and transgender?”) – it was reported that 3.8% of Americans are non-heteronormative.
 It might be interesting to note that C is modelled after US statistics.