Philosophers Discuss Supreme Court Ruling in Obergefell v. Hodges

The U.S. Supreme Court ruling in Obergefell v. Hodges reveals a lack of clarity as to what marriage is. The Court's language suggests that the equality of civil unions requires calling two distinct things by the same name: marriage.

Civil partnerships of same-sex couples and male-female marriage are now on the same legal footing in all 50 states. That does not mean they are the same thing, however. We have yet to see how the courts, U.S. corporations, the media, etc. will hold these distinct entities in balance. Will the balance tilt toward the equality of unequal pigs described by George Orwell?

The Supreme Court decision breaks with international precedent. Other countries call the same-sex legal arrangement a "partnership" or a "pact" and in these nations the issue was resolved much more quickly and justly. There was never the confusion about how marriage is properly defined.

Norway has had "registered partnerships" since 1993.

Sweden has called them "registered partnerships" since 1994.

Hungary and Iceland have had "registered partnerships" since 1996.

France has called them “civil solidarity pacts” since 1999.

In Denmark “registered partnerships” were first recognized in 1998 as an alternative to marriage and an option for heterosexual couples. Adoption by homosexual couples was approved in 2000.

The Netherlands, Finland and Germany have had "registered partnerships" since 2001.

It is clear that gay and lesbian couples deserve spousal benefits. The majority of Americans are for fairness. However, the legal waters are muddy and there will be more law suits.

Texas Attorney General Ken Paxton stated that hundreds of public officials in Texas were seeking guidance on how to implement what he called a flawed decision by an "activist" court. Thousands of county clerks in Texas who object to gay marriage can refuse to issue marriage licenses to same-sex couples, because while the Supreme Court justices had "fabricated" a new constitutional right, they did not in Paxton's legal opinion diminish, overrule, or call into question the First Amendment rights to free exercise of religion.

County clerks are elected officials. Many will refuse to issue licenses out of respect for the views of those who put them in office. Some will refuse on religious grounds to issue "marriage" licenses for same-sex couples. There will be more law suits.

The following philosophers have written brief comments about the Supreme Court decision:

Elizabeth Brake (Arizona State)
Cheshire Calhoun (Arizona State)
Clare Chambers (Cambridge)
John Corvino (Wayne State)
Brook Sadler (South Florida)
Edward Stein (Cardozo)
Kevin Vallier (Bowling Green).

Read what these philosophers have to say here.


Related reading:  Native American Tribes Ban Gay Marriage

Elizabeth Anscombe (1919 – 2001)

Alice C. Linsley

Elizabeth Anscombe (1919-2001) was one of the 20th century's most remarkable philosophers. She studied with Ludwig Wittgenstein and upon his death in 1951 became one of his literary executors. She translated Wittgenstein's unpublished writings, preparing them for publication after his death and she wrote An Introduction to Wittgenstein's Tractatus.

Anscombe as a
young woman

In 1970, Anscombe was appointed to the chair in Cambridge that had been held by Wittgenstein. Despite her concern to preserve the writings of her former teacher, Anscombe was not a Wittgenstein disciple. Her great intelligence and originality led her in different directions and to different conclusions.

In 1958, Anscombe produced a paper titled “Modern Moral Philosophy” in which she offered a critique of prevailing academic approaches to ethics. In this paper, she pointed out that while Aristotle had much to say about virtue and vices, he did not think of morality as heirs of the Judeo-Christian tradition do. Our conception of morality comes from centuries of Christianity, as it emerges from the Jewish Apostles and their biblical reflections on the Torah. The Judeo-Christian conception of moral obligation is based on codified law. From the first century A.D., Greek-speaking converts to Christianity sought to conform to virtues and avoid vices because these were viewed as a requirement of divine law.

Anscombe’s work restored interest among philosophers in the Aristotelian idea of virtue. Her paper on modern moral philosophy advanced “virtue ethics” in the 20th century. Her influence is seen in the work of Alasdair MacIntyre’s book After Virtue (1985) and Onora O'Neill’s book Towards Justice and Virtue (1996).

It was in the area of moral philosophy that Anscombe countered Heidegger’s bleak existentialism. She argued that since 20th century western society is no longer Christian, the terms “good” and “evil” or “right” and “wrong” are no longer useful. These terms are only meaningful as they are attached to the Judeo-Christian concept of a law-giving Creator God. Anscombe believed that in the post-Christian world most philosophers become consequentialists, judging rightness by the consequences. She held that consquentialism is incompatible with the Judeo-Christian ethic, since the latter insists that there are some actions that are always forbidden regardless of the consequences. She then proposed a way forward. She recommended discarding the notions of duty and of moral right and wrong in favor of justice and injustice.

Let us consider Anscombe’s argument. First, she assumes that the world is a place where the reasoning individual can be assured that concepts of justice, good, and moral obligation have meaning. This suggests that Heidegger’s “nothing” which causes us anxiety has a binary opposite – something – and this something potentially relieves anxiety. The logic of her argument is that when we feel the anxiety of injustice (which is negating) we should perform justice. Justice then is not a state of affairs, but a practical virtue of a good person. It is perhaps the derived virtue of being made in the image of a Good God.

In this view of justice, Anscombe replies also to Leibniz’ criticism of traditional conceptions of God as good. Leibniz wrote: “It is generally agreed that whatever God wills is good and just. But there remains the question whether it is good and just because God wills it or whether God wills it because it is good and just; in other words, whether justice and goodness are arbitrary or whether they belong to the necessary and eternal truths about the nature of things, as do numbers and proportions (Reflections of The Common Concept of Justice). Anscombe’s argument is that humanity’s an; xiety about death and negating injustice can only be there because humanity knows the Good. Her argument is the reverse of Heraclitus’ (540-480 BC) who said “If it were not for injustice, men would not know justice.” Essentially, Anscombe is saying that the rational study of Man as subject leads logically to the conclusion that were it not for justice, humans would not know injustice.

Related reading:  Elizabeth Anscombe on Justice; Princeton Students Form Anscombe Society; Virtue Ethics