IV. Institutional Membership
The topic of this section is, given the existence of a social institution with the function to prevent the problems that result from the production of children, who may justifiably become members? If participants in marriage are to receive rights or benefits from the state–a question I won’t be addressing here and will just assume–the state needs to determine who may justly receive these rights and benefits. The principle of equality states that it is unjust to treat people differently based on a factor unrelated to the relevant character of an individual. And so it is a case of unjust discrimination to exclude an individual from an institution based on some characteristic unrelated to the position. Race is the classic example as race plays no factor in one’s ability to take on a social function, and so it is unjust to exclude a person from a function based on that factor. A similar principle applies in the case of social institutions; if there is an institution whereby individuals sow seeds, nurture the resulting plants, harvest them, and sell them, it is unjust to deny the title of farmer, and any benefits that would accrue to them in virtue of their farming, to any individual so engaged based on some characteristic unrelated to farming.
It is just to exclude someone from an institution when they refuse or are unable to perform their obligations. As I argued in parts I and III of this series, the obligations of an institution are those behaviors that produce the institutional end. In the case of marriage the duties are those behaviors that prevent the problems that result from the production of children. The first such obligation upon all the others are contingent is that one form an enduring reproductive unit. Forming any other kind of grouping plays no causal role in preventing the problems that result from its members’ production of children. Those who refuse this duty may be justifiably excluded from marriage.
There is a three phase process wherein candidates are admitted to or denied membership in a functional institution. Firstly, prospective members must possess an institution-relative function. Prospective members of an institution often, but not always, obtain their function from training institutions or schools. Schools produce doctors and scholars, police academies produce police officers, armed forces boot camps produce soldiers, and so on. These vocations are all typed by function. After graduation the individual is deemed to possess the relevant function and they then go on to perform this function in the field they have chosen. A function is institution-relative if it contributes to the performance of the greater institutional function. For example, prospective members of a police department undergo training in order to come to possess the function of police officer, or detective, or forensic scientist, etc. These functions are relative to the institution of a police department, and contribute to the institutional function of enforcing the law. Being a stockbroker, on the other hand, is not institution-relative to a police department.
Secondly, when titles, rights and benefits are distributed based on function, it is necessary to be able to tell what that function is, when it is being performed, and to distinguish it from other functions. Discerning the function of an institution and its members, and the behaviors that achieve it is the job of what I will call the “functional distinguisher.” For example, in a business, the human resources department often needs to distinguish the various positions from one another. In placing an advertisement for a position, the department will describe the position, its function, the reproductively established behaviors of the function that will be expected, and the requirements or virtues one must possess in order to perform these behaviors. This occurs because the business will be dispensing benefits such as a salary to those performing this function, and so it needs to be able to distinguish this role from those not performing the function (or performing some different function) so that the former but not the latter receive the appropriate benefits. For example, if a physician attempts to apply for a computer programmer position he or she may be justifiably excluded from the position and no unjust discrimination has occurred.
The third step is the selection phase. As its name implies, in this phase the acceptable candidates for the role are selected. In the business example, the selection role will be played by someone such as a hiring manager who decides who to accept to the position as described by the distinguisher. (Sometimes both roles may be played by the same individual.) It is just for the selector to exclude someone from taking on the position if they lack the virtues the position requires. For example, the candidate for a computer programmer position has selected which business he wishes to join, and the hiring manager selects whether or not they wish to accept the candidate. The candidate can be justly rejected for the position if they can not or will not program computers, or can not program them as well as some other candidate, and they can not then claim unjust discrimination or a violation of equal protection of the law.
As regards the state, in a liberal society the state is not permitted to prevent an individual from attempting to take on a functional role. The state can not stop someone from aspiring to be a farmer, even if they are incapable of farming well, for example. On the other hand, in totalitarian societies, such as the one described by Plato in The Republic, the state does select and assign individuals to certain institutions. Perhaps someone who makes a bad farmer would be unwise to try to perform that function, but in this example the individual is taking on both the role of farmer and the role of selector and so he can not be prevented from doing so by the state. But if he was looking to be hired to farm by someone else, and was unable to perform that function, he could justifiably be denied that position by the selector.
In the case of marriage, as we saw in section II, it is nature which assigns function and determines who forms a natural reproductive unit and so possesses the institution-relative function of producing offspring. The Normal way for individuals become part of a natural reproductive unit is by coming to be attracted to one another and coming together to be part of a pair. A homosexual pair either has no function or some function other than the production of children. In modern Western societies, the state has taken on the role of distinguisher (although the Church continues to play it as well). It is necessary that it does so as the state bestows certain rights and benefits on marriages, and so it needs to be able to distinguish what marriage is so as to prevent non-members or those with some other function from receiving those benefits. In so doing, the state is justified in preventing those who do not possess an institution-relevant function from joining the institution in question. If, for example, the state has a program of tax cuts in place for farmers, it is just to prevent blacksmiths and other non-farmers from claiming to be farmers and receiving that benefit. Likewise, as marriage prevents the social problems we have discussed through its members taking on particular obligations, the state is justified in encouraging it by providing benefits to those entering this institution, and denying them to those who do not have such a function. This answers Sadler’s challenge of explaining why “if some or all of the legal rights and benefits of marriage are genuine goods, it is difficult to see why such goods should be denied to non-married people (Sadler 2008: 581).
Finally, as regards the selection phase, in modern Western societies this step is performed by the individuals involved. In many places and times it is the parents who perform the selection of marriage partners for their children. And in a state that practices eugenics, the state plays the selector role for marriage. But even though in modern Western societies it is the individuals who perform the selection role, the state, as the distinguisher, is still justified in denying those without a relevant function from claiming membership (and the benefits that such membership bestows) in the institution.
To say that the state needs to distinguish marriage is not to say that marriage is merely conventional, or “socially constructed” by the state. Society or the state can no more construct the function of marriage than it can construct the function of the heart or liver. Like the biological examples, the function of marriage is entirely real and objective. However, the state does need to understand its nature because it distributes benefits to participants in that institution based on its beneficial effects, and so the state needs to be able to understand and distinguish that institution from others which do not perform its function. And so when Brake says that “a liberal state can set no principled restrictions on the … nature and purpose of [marriage] relationships” (Brake 305) she is in one sense right (but not in the sense she intends). The state can not set the purpose of marriage. But neither is the institutional purpose set by the intentions of its participants, as implied by Brake, any more than the function of a police department or school is determined by its members’ intentions.
The conclusion is that since homosexual relationships do not and can not have a function relative to the institutional function of procreative marriage, the state is justified in preventing homosexual couples from entering the institution. It is no more unjust to do so than it is to prevent a firefighter from being accepted into a police department, or perhaps that someone with cerebral palsy can not acquire the function of a linebacker and so may be denied acceptance to a football team. Indeed, justice demands it insofar as the state will be providing rights and benefits to those participating in the institution of marriage because of the specific benefit this institution bestows to society. That nature, for whatever reason, has set the object of sexual attraction to be of the same sex makes no difference. As mentioned previously, if the state was offering a tax benefit to farmers and an individual was claiming this tax break but was not a farmer, the state could justifiably deny the title of farmer and the benefits provided to farmers to that individual. As applies to our current case, homosexual marriage would be like the non-farmers calling themselves farmers; they are either do not possess that function and/or possess an entirely different function. Even if society agreed in calling the non-farmers farmers because of the great status farmers enjoy in that society, they would not thereby be farmers, and providing the non-farmers the benefits that rightly belong to farmers is an injustice.
The series concludes in part 5.