1. Philosophy 220 Consequentialism and Moral Concerns about Marriage

2. Consequentialism: The Basics ● Consequentialism is the name given to a family of more specific normative ethical positions all of which share the conviction that it is the consequences of actions which determine their moral worth. ● As Timmons expresses it, all of these positions are committed to the following claim. ● Right action is to be understood entirely in terms of the overall intrinsic value of the consequences of the action compared with the overall intrinsic value of the consequences associated with alternative actions an agent might perform instead. ● Thus, an action is right iff its consequences would be at least as good as the consequences of any alternative action that the agent might instead perform.

3. Implications There are a number of important implications of this statement of these claims. 1. Consequentialist theories are value-based. 2. They are comparative theories. They make specific reference to alternative actions and the rightness or wrongness of any action is dependent on the value of the consequences of those actions. 3. The consequentialist account of right action is a maximizing conception. 4. Consequentialism is an impartialist moral theory. We have to consider the consequences for everyone and everyone counts equally.

4. It’s All in the Family The various specific forms of consequentialism share a commitment to these basic claims. They differ in their theory of value. The TV of Utilitarianism identifies intrinsic value with human welfare or happiness (it’s expression). The TV of Perfectionist Consequentialism identifies intrinsic value with human perfection. The TV of Rule Consequentialism identifies intrinsic value with the acceptance value* of rules. *The value of the consequences of the rule were it generally accepted

5. Utilitarianism The basic idea of U is that the rightness or wrongness of actions is determined by the their effect on human welfare or happiness, with maximization and impartiality assumed. Measure of this effect is called Utility: the net value of the consequences of actions. Result is the Principle of Utility. An action is right iff its performance would likely produce at least as high utility as would any other alternative action.

6. What makes you fare well? An important issue that all utilitarians must address is how to understand human welfare. Classical utilitarians (J. S. Mill, J. Bentham) identify happiness (and thus human welfare) with pleasure and pain. For this reason they are labeled Hedonsitic Utilitarians. As such, it is important to consider various senses of pleasure and pain. Bodily Pleasure vs. Intellectual Pleasures

7. Perfectionist Consequentialism PC adopts a different TV than utilitarianism. Value Perfectionism: states of human perfection (knowledge, excellence) that have intrinsic value. Thus, the TRC of PC says An action is right iff its performance would likely bring about a greater net balance of perfectionist goods than would any other alternative action. What is a perfectionist good?

8. Rule Consequentialism Both U and PC focus on actions. They are both forms of Act Consequentialism. There are a number of well recognized challenges to act consequentialism. Ex: Problem of Justice (Framing an innocent.) As a result, some consequentialists have shifted their focus to the capacity of rules to guide our action. When we shift with them it becomes possible to consider the consequences of the acceptance of various possible rules.

9. Playing by the Rules On the assumption that some rules produce more valuable consequences than others we can specify a TV for RC. An action is right iff it is permitted by a rule whose associated acceptance value is at least as high as the acceptance value of any other rule applying to the situation. In the face of more than one possible action, RC directs you to identify the rules governing the possible actions and then compare the rules’ acceptance values to determine which action is right.

10. Consequentialism in Action Applying consequentialism requires calculation and comparison. Calculation can refer to an overt calculus or a more informal estimation. The explicit goal of the calculation is to identify the action/rule that maximizes the specified value(s). Comparison must include all parties affected (in a relevant or significant way) by the proposed action. Evaluating consequentialist claims requires us to consider the truth and/or adequacy of the claims made, as well as the accuracy and appropriateness of the calculation and comparison.

11. Marriage: What is it good for? Independent of the social, emotional and psychological effects of marriage, there are over a thousand state and federal rights enjoyed only by married people. They include: joint parenting; joint adoption; status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent; dissolution and divorce protections such as community property and child support; immigration and residency for partners from other countries; inheritance automatically in the absence of a will; benefits such as annuities, pension plans, Social Security, and Medicare; joint filing of tax returns (with associated withholding benefits); wrongful death benefits for a surviving partner and children; bereavement or sick leave to care for a partner or child; decision-making power with respect to disposition of a deceased partner’s remains; judicial protections and evidentiary immunity. For the most part, the exercise of these rights cannot be privately arranged or established by contract.

12. Gallagher, “Normal Marriage: Two Views” Gallagher is a conservative on the question of the moral status of marriage. That is, she believes that only some forms of legally approved unions should count as marriage. To justify this position, she begins by distinguishing two theories about what normal (that is, public, legally authorized) marriage is: The Relationship View: Marriage is an essentially private relationship whose fundamental aim is to enhance the personal well-being of the married partners. The Public View: Marriage is a public bond and sexual institution between members of the opposite sex; it is fundamentally about reproduction and the continuation of society.

13. The Argument Strategy Though she recognizes that these two views are not mutually exclusive, she does want to argue that they lead to two very different views on the morally permissible forms of marriage. Only one of the views is consistent with her conservative position on the issue. Though we might not be able to argue for or against one of these views directly, we can consider the consequences of the views, if broadly adopted. This would provide us with the resources for a rule consequentialist type of analysis. The basic idea then is that if one view, if adopted, would produce significant undesirable consequences, then we should resist its adoption. Likewise, if another view, if adopted, would produce desirable consequences, then we should adopt it.

14. One ‘Rule:’ The Relationship View Gallagher first considers the nature and possible implications of the adoption of the relationship view. Understood in these terms, there would be no non-question begging or prejudicial basis for denying individuals access to marriage based merely on the biological sex of the partners (or even the number of the partners). This is not to deny that there are legitimate state interests that could serve as the basis of restricting access to marriage nor that there are important social goods that the legal status of marriage seeks to foster, enhance or protect. On the one hand, health concerns, or concerns about age appropriateness seem legitimate bases for restrictions. On the other, social stability and the interests of children are important goods that might justify the legal protections embodied in marriage.

15. Possible Consequences Gallagher is concerned, however, that the more permissive approach to marriage consistent with the relationship view (one which includes the possibility of same-sex marriage) would lead to a range of undesirable consequences. Though less a consequence than an observation, Gallagher claims that the relationship view makes it more difficult to understand why the states have traditionally regulated marriage. An important possible consequence that Gallagher claims is the erosion of the idea that there is a special connection between a child and his/her biological parents, a connection that explains the parents' obligations to their child. The implications being that the relationship view, to the extent that it makes parenting a choice, not a biologically determined imperative, would weaken the moral obligations felt by parents. Another important possible consequence is the claim that, “…children not raised by their own married mother and father are at increased risk for just about every negative outcome social scientists know how to measure…” (110c2). Note the assumption made by the following: “There is no evidence from the social sciences…that credibly disrupts the assumption that a child does better raised by his or her own married mother and father” (Ibid.).

16. Real Consequences? When we are evaluating consequentialist arguments like Gallagher’s we have to consider whether the claimed consequences really do follow, if they add up in a way that justifies the moral verdict, and if all the relevant interests are considered. With regard to the first concern, we should note Gallagher’s own admissions about the weaknesses of the social scientific evidence for her position. “Due to problems in sample selection and size, study design and other technical flaws, the current body of social scientific literature…cannot tell us whether or not there are any important differences between children raised by their own two married mothers and fathers, and children raised by two same-sex parents” (109c1). As a result, with regard to the second concern, it’s not clear that the problems add up in a way that justifies her rejection of the relationship view (and thus of same-sex marriage). Most of her concerns seem to be addressed most appropriately to the challenges facing single parents. But there is no reason to believe that the relationship view results in more single parents. Finally, there seem to be a number of possible social interests not addressed by her concerns, but well handled by the relationship view. For example, the interest in social stability as promoted by marriage.

17. Another Rule In addition to raising questions about the moral value of the consequences of the relationship view, Gallagher also considers the moral value of the consequences of the public view (and the more conservative account of marriage that it supports). Gallagher focuses on the following positive consequences claimed for the public view: Adopting this view is necessary for the survival of society. The institution of marriage is already tottering on the brink; a more permissive view threatens to push it over into oblivion, resulting in dramatic negative consequences for our social fabric. Adopting this view would have good consequences for children, who need to be raised by married opposite-sex couples to thrive. Even if the law reflects this view (and it should) by not allowing same-sex marriage, same-sex couples could still enjoy many of the legal benefits that married couples do.

18. Again, Real Consequences? In this context, too, we should evaluate the consequentialist claims made by Gallagher. We should wonder about the relationship between the public view and the survival of society. Even if it’s a reflection of historical reality (a big ‘if’), is it necessarily the case that human society requires an idea of marriage dominated by reproduction and publically defined gender/parenting roles? Are the problems with the institution of marriage really solved by adopting the public view? Acknowledging that there are benefits that flow to children raised in traditional family structures, are those benefits so substantial that they outweigh the costs associated with the restrictive limits imposed on marriage by the public view? Are the benefits denied to people by the restrictions of the public view really as trivial as Gallagher suggests?

19. Wolfson, “Enough Marriage to Share” Wolfson replies directly to Gallagher. It is a good example of the kind of critical work that needs to be done to evaluate consequentialist arguments like the one offered by Gallagher. Like we did, though in much greater detail and marshaling significant legal and social scientific research in support of his criticisms, Wolfson responds to the sorts of questions and concerns readily raised in response to Gallagher’s argument. Notable amongst the findings to which he directs our attention: There is no reason to believe that same-sex couples are generally not as capable of successfully raising children as opposite-sex couples (116c1). Denying same-sex marriage has no benefits but many costs (especially to same-sex couples and children of these couples) (116c2-117c1). Marriage is not necessarily about procreation (117c1). There is little or no reason to think that legalizing same-sex marriage would have serious negative consequences (117c2-118c1).

20. In Conclusion As Wolfson notes at the end of his essay, despite Gallagher’s claims to the contrary, this laws and courts of the United States have generally affirmed the relationship view of marriage. Cf., quotation from Griswold v. Connecticut (118c1). Noting that many other developed countries have allowed same sex marriage without any appreciable negative consequences, Wolfson concludes that the U. S. should allow it too.