7/25/15: Upon review this blog has been edited significantly for grammatical correctness and clarity. I apologize for any glaring difficulties and hope that this revised version is easier to follow.

Synopsis: This paper-length blog post covers some of the developments in the gay-marriage debate among contemporary Confucian scholars. Throughout this piece I summarize and reconsider some of the proposed stances that some modern Confucian scholars take towards same-sex marriage. I consider what I call the Mengzi/Child Argument, the Metaphyiscal Argument, the Ren Argument, and the Institutional Argument.

In each case I attempt to provide alternatives to the options provided by the mentioned scholars. First, the Mengzi Child argument relies on a selective reading of the Mengzi that contradicts egalitarian ideals upheld by both the East and West. Second, the Metaphysical Argument runs into Humean problems as it attempts to derive an “is” from an “ought.” Third, the Ren Argument, gives more reasons for approving of gay marriage than for discouraging it, and misunderstands the origins of homosexuality. Finally, the Institutional Argument rests on a slippery slope, and evidence exists to support some degree of institutional change. In the last section, I respond to Vassar professor Bryan Van Norden’s article, proposing that perhaps the orientalism that Van Norden holds Justice Antonin Scalia to is also in the foreground of Justice Anthony Kennedy’s citation of Liji (Duke Ai Asks, 8). Overall, I believe these developments have provided an entry point for the East to engage in constructive dialog with the West, which both parties have fumbled on to differing degrees. All translations are done by me, unless stated otherwise. Those that are done by me include the original text. Original opinions from Chinese scholars can be found here, Van Norden’s piece here, and the original ruling of Obergefell v. Hodges here.

June 26th 2015 saw many new beginnings. First and foremost, the U.S. Supreme Court in Obergefell v. Hodges upheld the right for same-sex couples to marry under state recognized law, deciding by a weak majority (5:4). Given significantly less coverage, however, was the citation of Confucius in the majority opinion and the following debates both domestically and abroad. To my knowledge, this is the first time that any Chinese philosopher has been cited as a source of authority in a Supreme Court case opinion. Furthermore, given the prevalent belief of Confucianism as Chinese common property, it raises the question: “What can Confucius say about gay marriage?”

Opinion pieces have tended to focus on either the quotation from the Liji or the actual institution of marriage itself. For instance, Vassar professor Bryan Van Norden has eloquently summarized a close reading of James Legge’s translation, appropriateness of Justice Anthony Kennedy’s citation, and Justice Scalia’s egregious orientalism. Others, such as Capital Normal University (首都师范大学) professor Chen Ming’s (陈明), have focused primarily on homosexuality more than gay marriage itself, using the court case more as a means to ground relevance. That’s not to say there are not some perspectives that have aimed to do both, and others that have more directly taken on the concept of gay marriage, but the vast majority tends to focus on either the exegesis or contemporary opinion. Here, I hope to outline some of these opinions, give charitable criticism, and offer some answers to the question posed above.

The Chinese scholars that I address here have made their voices heard through the website Confucian Web (Rujia Wang, 儒家网). That noted, the stances of these opinions are decisively anti-gay marriage. As per convention, each scholar makes some appeal to the classical texts, notably the Analects, Mengzi, and Zhou Dunyi’s Commentary on the Xici Zhuan, and notable historical trends both in the west and east.

Of the strongest arguments are ones that admit that there is no clear opinion in any of the pre-contemporary era texts that support anti-gay marriage stances. The reason for this is quite simple, there are no passages that explicitly forbid gay marriage in the classical texts. In short, the closest vestiges of the modern concept of “homosexuality” in China seems to find its roots in the west, as indicated by quite literal renditions of the term in Mandarin (tongxinglian (同性恋) lit. same-gender-affection, jilao (基佬) from the Cantoneese gay-low, and also commonly, just the English “gay.”) That’s not to say that there weren’t instances of homosexuality in pre-modern Chinese culture, but it makes sense that the classical texts do not formulate any explicit forbiddances of gay marriage. If there was a single sentence that said so, there would be no debate, no diversity of opinions, and quite frankly, I wouldn’t be writing this blog.

Therefore, the main task for these scholars is to create a position based on textual artifacts left by the classical writers. In other words, sound methodology shows an effort to acknowledge a form of philosophical construction, grounded in a close reading of the text, and a solid effort to interpret those nuances in a modern context. Of these positions, some are actually very creative (see below, The Metaphysical Argument). Somewhat ironically, various critiques don’t actually restate any, strictly speaking, Confucian opinions, but instead appropriate conservative arguments in the same manner that many historically accused Mou Zongsan of transplanting liberalism onto Confucianism (see Stephen Angle Contemporary Confucian Political Philosophy, 2012, p.31-33). The arguments fall into four distinct categories, which I will call, The Mengzi/Child Argument, The Metaphysical Argument, The Ren Argument, and The Institution Argument.

The Mengzi/Child Argument

Life long fans of Mengzi 2A.6 will be disappointed to find out that this type of argument does not include a baby falling into a well. Rather, it more closely resembles western anti-gay marriage rhetoric. The Mengzi/Child argument concerns the conception and upbringing of children in families with same-sex parents. Huadong Normal University (华东师范大学) professor Fang Xudong (方旭东) is the main proponent of this stance. Wu Gou (吴钩) has touched on this topic as well.

The Mengzi/Child Argument centers on a reading of a famous passage in the Mengzi: “There are three unfilial acts, to not have descendants is the greatest [不孝有三，无后为大]”（7A.26) In Fang’s account, he follows up by including an interpretation from Han dynasty commentator Zhao Qi: “ To not marry and be without children, this ends [the custom of] sacrificial rituals to the ancestors [不娶无子，绝先祖祀].” Bluntly put, the appeal to Zhao as an authority raises issues of modern living.

In my humble experience as an undergraduate, Zhao is rarely appealed to, even in academic circles. Sinophone and polyglot readers will notice that the word I translate as “marry (取) ” is a gendered term in both contemporary and classical Chinese. Qu refers to a man taking up a woman (while jia (嫁) is often used for a woman’s marrying to a man). To accept that Zhao’s interpretation as the only valid interpretation is to leave open the question of a female’s (heterosexual, homosexual, or otherwise) role as a filial daughter. Now –not to put him in a straw-man costume, but humor me for a second– we could assume that Fang might insist that only men can be filial, and therefore achieve moral perfection (sagehood). However, this flies in the face of scholarship, both contemporary and ancient, that has made it clear that there is an equitable place for women in Confucian ethics and more to delve into, beyond Zhao’s interpretation.

But assuming his argument stands on it’s own, he still has more to say. After summarizing the U.S. Supreme Court’s decisions on several cases dealing with the right of same-sex parents to rear children, he states,

“Regardless, Confucians always have had reasons to reject gay marriage…We want what marriage originally signifies, and not some secondary good or a substitution; we want kids raised by their own birth parents, and not adoption…[This] on an individual psychological and societal level has a large influence [即便如此，儒家仍然有理由反对同性婚姻… 我们要的是本来意义上的婚姻，而不是某种次好品或替代品；我们要的是父母亲生的孩子，而不是收养来的…它在个体心理与社会层面都会造成巨大的影响].”

I am honestly not entirely sure about what he means by “what marriage originally signifies.” As Chen Ming has pointed out, marriage in pre-modern China was purposed for “union of two families, not two [different] genders.” If that’s the case, then there’s really no force behind Fang’s argument. Gay individuals are of two families after all. Regarding adoption, however, I refer to Ming dynasty’s Wang Yangming:

“That the great man can regard the Universe, Earth, and the myriad things as one body is not because he intends (yi 意) it so, but because of the natural humaneness of his mind…. Even the mind of the small man is no different. Only he himself makes it small. Therefore when he sees a child falling into a well, he cannot help a feeling of alarm and commiseration. This shows that his humaneness forms one body with the child. It may be objected that the child belongs to the same species. Again, when he observes the pitiful cries and frightened appearance of birds and animals about to be slaughtered, he cannot help feeling an ‘inability to bear’ their suffering. This shows that his humaneness forms one body with birds and animals. It may be objected that birds and animals are sentient beings as he is. But when he sees plants broken and destroyed, he cannot help a feeling of pity. This shows that his humaneness forms one body with plants. It may be said that plants are living things as he is. Yet, even when he sees tiles and stones shattered and crushed, he cannot help a feeling of regret. This shows that his humaneness forms one body with tiles and stones. This means that even the mind of a small man forms one body with all” (Translation by Wing Chan-Tsit, slightly modified by Stephen Angle, Sagehood 2009 p.28.)

Imagine that you yourself, for whatever reason, cannot contribute to the task of having a child in the “traditional” fashion. Perhaps melancholy, you have stepped into an orphanage and seen the conditions in which the orphans live. Maybe, the orphanage is well financed and they receive fairly good upbringing. But it’s clear that they lack the family affection that Confucians see as important to upbringing. So you eventually decide to adopt. It makes sense of course, Wang did stress the unity of knowledge and action (知行合一) .

The only way I see that Fang can have a legitimate issue with my interpretation of Wang Yangming is if he sees the extension of sympathy and the making “one body” with the world as not important to Confucian ethics. And to acknowledge that provides him with the problem of trying to align this position with the wealth of scholarship – again, contemporary and ancient — that says otherwise. The burden of proof is on him to extricate himself from his narrow reading.

The Metaphysical Argument

I find this category interesting. Never in my life before have I heard someone say “homosexuality is metaphysically right,” or “homosexuality is metaphysically wrong,” both of which are awkward sounding statements. Of course, there are scientific arguments, but those in modern day academics are usually distinguished from the philosophical discipline of metaphysics.

Shandong University (山东大学) professor Zhang Xianglong (张祥龙) is the main proponent of this view. Chinese metaphysics is famously based on a system of complements (as opposed to Hegelian dialectics, which are not only confusing, but also “conflicting” by nature). Zhang’s main task is to hash out the degree to which gay individuals need to conform to this system, and to what that necessitates for society. He writes:

“But Confucians don’t believe homosexuals are innately evil [does he think they’re evilness is stamped on them by an external force?]… This phenomena is just a divergence from the full exchanges of Yin and Yang [但是，儒家并不认为同性恋本身是邪恶的…这种现象只是阴阳相交不充分而生出的某种偏离］.”

He proceeds to explain this with a quote from Zhou’s commentary on the Xici Zhuan:

“Hardness and softness mutually pressure each other, change occurs in the center. The system [the Xici Zhuan] interprets these, giving them names, the laws of change and motion occur at the center. Auspiciousness, ominousness, regretfulness, stinginess, these are born from movement [刚柔相推，变在其中矣。系辞焉而命之，动在其中矣。吉凶悔吝者，生乎动者也].” (Thanks to professor Stephen Angle and Zixuan Zhao for consultation and explanation of this quote).

Zhang follows up with an interpretation of this blatantly obscure quote:

“As a result, the entire universe is constituted by the system of Yin and Yang. Therefore, heterosexual married couples –generally speaking – will account for a majority, even a vast majority. But this doesn’t crowd out the minority of men-men woman-woman arrangements; although, they internally have [only] a small Yin-Yang or couple distinction, they’ve left behind the large Yin-Yang process, and have no way to give birth to descendants. Because of this self-destruction of their own descendants, in this situation, they have no way of joining the activities of the larger community［由于整个宇宙是阴阳构生的大结构，所以男女化的夫妇一般说来会占大多数甚至绝大多数，但也的确不能排除少数男男化或女女化的搭配。他们内部虽然也有小阴阳或准夫妇之分异，但因背离大阴阳而无法生育后代。由于这种自绝后裔的搭配，在正常情况下，他们就更不会在族群中泛滥成灾]” (my italics).

However, there’s something troubling about his deduction, which I hope Zhang can answer from inside Hume’s guillotine. Two readings of Zhou Dunyi’s Taiji Diagram are important here: the cosmogony reading and Zhu Xi’s ontological reading. On the first reading, Zhou Dunyi is simply detailing the process by which cosmic forces unfold into the everyday world we perceive, or in Daniel Dennett’s terms, the manifest image. But this more clearly falls into the clutches of the Is-Ought problem; if it’s simply the way things are, then how can we read in any normative critiques of homosexuality?

On the other hand the ontological reading is slightly trickier. Zhu Xi equates the first stage, the Supreme Ultimate (太极) with Pattern (理). Zhu Xi’s concept of Pattern both encompasses normative and descriptive phenomena. On Zhu Xi’s reading, the Taiji Diagram just outlines the general trends that everything follows. Yin-Yang, the Five Phases, etc. are simply manifestations of Heavenly Principle. However, this still begs the question. Even if we accept that Zhu Xi’s interpretation is correct, what grounds the argument that exclusively heterosexual marriage is the one and absolute Pattern that the institution of marriage should be based upon? Zhang has a bit more work to do in making his point. (For responses to possible objections, see The Institution Problem).

There is something to be appreciated, even in Zhang’s overbearing anti-gay polemic. He makes room for what I have italicized in the long quote as small and large Yin-Yang relationships. Read charitably, I believe what he means has to do with how people complement each other. As said before, Chinese metaphysics is a system of complements. Perhaps – what I hope he means— is that individuals in homosexual couples in the scope of a larger cosmos complement each other in less ways (for example, x, y, z , minus gender) that heterosexual couples (x, y, z, plus gender) do. In other words, “small” and “large” should best be understood as a quantitative claim, not a qualitative one. Regardless he still needs to flush out why the entire cosmos supports him in protesting gay marriage.

The Ren Argument

Right off the bat it sounds odd to state that the cardinal Confucian virtue of Ren discourages gay marriage. The Ren argument attempts to treat homosexuality from the perspective of personal sympathy. As a disclaimer to most of my readers from the western world, I’d like to encourage them to view these statements with a bit of sympathy themselves; it’s not apparent that there’s any malicious intent on behalf of its exponents. However, this argument does illustrate that that there are major differences in how Americans and Chinese treat the etiological causes of homosexuality. Chen Ming writes in favor of this position.

Chen Ming’s opinion hinges on a paradoxical interpretation of the classics and modern science. On one hand he advances an opinion that runs counter to his contemporaries; heavy prejudice directly contradicts the basic tenets of the Analects. Quoting from said text, he writes, “What one does not desire, do not press onto others [己所勿欲，布施于人]”(12:2), adding “[This] is ren’s basic principle and requirement […恕道是仁最基本的原则和要求].” However, Chen raises questions about how far we can actually extend the stipulations of ren:

“If naturally caused homosexuals call for sympathy, then socially caused homosexuals call for regret. I feel that most homosexuals are constructed [a result of social influence]. Society and culture should take care of and restrict this [homosexuality]. As such, the legalization of gay marriage is a counter intuitive systemic arrangement. [如果说基于自然原因的同性恋是叫人同情的，那么基于社会原因的则叫人惋惜— 我感觉许多的同性恋是被建构塑造出来的，文化和制度应该对此有所关照和约束。而同性婚姻合法化显然是一个与此背道而驰的制度安排]” (my italics).

First, Chen’s quotation of Analects 12:2 ironically looks more like a reason to support gay marriage rather than oppose it. It’s not entirely clear how we can be “sympathetic” in the way that 12:2 calls for and still deprive certain individuals of rights to marriage. The passage calls for a conceptualization of something undesired, and a negative (in the sense of restricting) action that manifests a minimal respect. 12:2 destroys his argument rather than buttressing it.

Second, I humbly believe that professor Chen has made a mistake in his first premises. By enlarge the consensus among the scientific community is that homosexuality is not a choice. Appeals to science are notoriously hard to make in Chinese philosophical discourses: In The Continuity of Being Tu Wei-Ming (杜维明) attempts to ground his ecology in a “metaphor for modern science,” as does Michael Kalton in his piece Extending the Confucian Tradition. For more information on pre-modern China and (why it doesn’t have) science, see here. Similarly, while appealing to a biological basis for homosexuality, I might caution professor Chen that his claim runs the risk of over relying on western social science’s theories of social constructionism (the language he uses literally says “construct-created [建构塑造].” This, I admit is a methodological hazard that seems to ail anyone attempting to do cross-cultural philosophy. To make myself perfectly clear, the reasons proposed for gay marriage in this paragraph are not purely Confucian ones.

The Institution Argument

The Institution Argument is the most common argument and by far the one that deserves the most attention. I believe it’s the most relevant of the four arguments, in particular to American and Chinese readers. The final argument borrows rhetoric from conservative American concerns about the legalization of gay marriage, in particular one claim by Justice John Roberts. Exponents of this argument include Wu Gou and, Zhang Xianglong.

Most articulation of their position revolves around Robert’s dissenting opinion in the actual case. Lengthy in stature, it concerns the stability of marriage as a social and political institution. While I believe their justification differs, essentially Roberts, Wu, and Zhang all share this concern for the instrumental value of ritual as a means of expressing love between two individuals, and the flourishing of children as a result of these relationships. Instead of trying to summarize his whole opinion, I think best to let Justice Roberts speak for the aforementioned scholars as they have done:

“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State ‘doesn’t have such an institution.’ But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.”

Despite the rhetorical spin that liberal media has given Roberts’s position, and the frantic tone of urgency that Wu and Zhang interpret into his opinion, I believe he has a point. Marriage preforms a certain role in our society by conferring certain benefits – in the words of Alasdair MacIntyre both “internal to practice,” and “external to practice” – for the commitment to particular values. The benefits conferred presuppose a minimal level of civic engagement (i.e. going through some sort of ceremony) in the community in question. Therefore, the conditions, restrictions, and nature of these rituals are changed when we change the form of the ritual itself. Read charitably, and admittedly without prior knowledge of Roberts’s own personal history, I read that he is trying to seek out a universal meaning of marriage in virtue of its role in a large system of institutions.

As alluded to above, marriage is in fact a ritual. In fact the passage that has spurred all of this debate originally states, “Marriage, this is at the center of government! [礼其政之本与！].” Likewise, Confucius in The Analects does make a clear effort to comment on ritual. In one passage he states, “The linen cap is that prescribed by the rules of ceremony, but now a silk one is worn. It is economical, and I follow the common practice” (James Legge, 9.3). So based on this segment alone, Confucius does encourage that we can change certain elements of rituals without effecting the their given meanings.

However, some in the dialogical fashion of the Sui dynasty might protest and offer the second half of that passage:

“Bowing below the hall is prescribed by the rules of ceremony, but now the practice is to bow only after ascending it. That is arrogant. I continue to bow below the hall, though I oppose the common practice”(James Legge, 9:3).

Here Confucius certainly shows reluctance to altering ritual structures. Yet unlike the hat-episode, Confucius seems reticent to change the ritual because of what it brings its participants to recognize. Despite this, I still haven’t saved us from falling off of Wu and Zhang’s slippery slope. I’m still begging the question: does polygamy directly follow gay-marriage?

I can best illustrate it this way: American fine dining etiquette is very particular and has a variety of strict norms. Some of these include starting with the outermost utensils, making one’s way inward as the meal progresses, refraining from picking up the bowl if a soup dish is served, conforming to a particular dress code, maintaining a certain volume with others at the table, etc. One day it suddenly becomes mandated by the federal government that it’s unreasonable for employees to ask customers to leave such establishments on the ground that some customers prefer to start from the innermost set of utensils and work their way outwards. So, it becomes permissible to eat in that way, and for the most part these customs remain unchanged, until one day someone decides that they would rather pick up the bowls and egregiously slurp their soup, instead of leave it on the table as has been historically required. As a result, an employee at one of these fine establishments in Kentucky is sued by a covert lobbying group, the case taken to the Supreme Court (at this point Scalia would probably not want to put up with this type of absurdity anymore and would have resigned), and eventually implemented as a law on the basis of stare decisis. Eventually this leads to people drinking wine from bottles placed on the head of their person sitting opposite to them, pirate suits as the standardized dress code, poodles as waiters/waitresses, chocolate fountains as a civil right, 2pac and Biggy Smalls rising from the grave, and the collapse of civil society. Not to mention that at this points people just don’t eat food at restaurants anymore.

I imagine that some will protest, “Max, that’s absurd. There’s a clear point where none of the things you list necessarily follow from what you list prior.” And that’s exactly my point. The question of “number of participants,” is fundamentally different from “sexual orientation of the participants,” yield different answers, and reveal different grounds of continued inquiry. Roberts, Wu, and Zhang are right to call into question the limits of liberalism, but their case needs more explanation.

Orientalism, Othering, and Open Discussion Across Cultures

I would like to conclude – I know, finally right? – my discussion by revisiting some of the objections that Vassar professor Bryan Van Norden brought up here. His article does not directly take a stand on gay marriage. Instead Van Norden is more concerned with a close reading of Liji .

Van Norden identifies Justice Scalia’s remark, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” as one of clear orientalism; the exoticization and alienation of the historical East. In order words, to read Scalia’s crude comment otherwise would require the reader to give him a very charitable reading.

However, Van Norden is somewhat ambiguous about Justice Anthony M. Kennedy. In the section Did Kennedy Get Confucius Right? Van Norden holds that Kennedy’s interpretation is consistent with Confucian ethics (which might be contrast with what happened to the first chapter of the Dao De Jing during the hippy movement). On the contrary though, Chen Ming has illuminated the fact that marriage in pre-modern was China seen as a union of two families, not two individuals. In this light, Kennedy seems to abstract from the original text a bit more than it’s context provides.

Why Confucius? Why not one of these guys? Obviously Kennedy meant no malicious intent. But what could really be achieved by appealing to a philosopher from before the Common Era who in this country is either unfortunately unknown, or known only as a comical conduit for crude jokes? One of my friends from China, a Politics major at my college could only charge him with, “Appealing to quasi-universalistic values,” something that stuck with me ever since. I don’t charge Kennedy with orientalism, but I do want to consider the notion that orientalism might be lurking in the background.

It’s a start that shows Chinese thought is becoming more widely recognized in the western world. However as the world becomes more globalized it’s important to take note of both differences and similarities. It does no respect to the “other” to identify them as immutably opposite to us. At the same time, it’s equally damaging to assume there are no differences whatsoever. A balance has to be struck that respects both.

I would like to end this blog with the hopes that both sides engage pursue solutions to how their traditions might engage in constructive dialog, respecting both each other’s origins and unique problems that they face. This is hardly realistic as an immediate reality, given the unfair generalizations applied in both directions, tense political climate, and xenophobia that naturally resides in nationalistic sentiments. But, as Confucius made clear in Analects 2.4, cultivation is a matter of long, enduring commitment.