Until recently, most thinkers about justice have assumed not only that laws should reflect and promote what is morally good, and punish evil, but that good laws helped to make their subjects better. Customs, too, perform much of the work of law, and usually with far greater efficacy, for good and for bad. I've been thinking about how some dubious customs, and bad or weak laws, have long thwarted the economic development of southern Italy, the chief culture analyzed by Edward Banfield in The Moral Basis of a Backward Society. Banfield saw that the trouble — if we assume that in fact it is a better thing to be industrial Milan than crime-ridden Naples, and I'm not entirely sure that I want to give the nod to Milan without further consideration of what family life is like in both places — depends not so much upon political ideology or even natural wealth but upon morals. It was the same kind of cold-eyed analysis that led him, in The Unheavenly City, to entitle one of his chapters on American cities in the 1960's "Looting for Fun and Profit."
Anyway, I think I'll defer performing the thought experiment, asking, "What would happen to people's honesty, and to business in general, if we treated contracts with the same insouciance with which we treat the marriage vow?" That's because it has occurred to me that there is one group in America that has been, perhaps inadvertently, conceding the point, that good laws not only reward good behavior, but encourage it, and help people to become good. Who are they? The male homosexuals arguing for the right to "marry".
Anyone who has paid attention to the self-described lives of homosexual men must be struck by the mind-boggling promiscuity — in fact, by the acceptance of promiscuity, and even group sex, as a matter-of-course part of the homosexual life. Yet, as the argument goes, such promiscuity is not simply the result of the desires of homosexual men themselves. It is also, it is said, the result of their inability to form legally binding marriages. If marriage were available to them — a biological absurdity, but let's ignore that for the present — then that would not only recognize and reward those men who would have devoted their lives faithfully to one another in any case. It would encourage other men to do the same. It would restrain the promiscuity; it would change the world of the homosexual male.
Now I don't believe that the marriage go-ahead would actually achieve these effects to any significant degree, because I don't believe that the relations of male homosexuals are analogous to the relations of married men and women. I've written elsewhere that, from what I've read and from what homosexual men themselves have told me, it seems rather that the relations are sexualizations of male friendships, and friendship is a different thing, not necessarily a greater or even a lesser thing but a different thing, from what men and women experience when they give themselves to one another in marriage. Still, I'd like to note the presumption of the argument. It is not, "People will do whatever they do, sexually, regardless of the law." It is, "Laws can make people better, not just by deterring the bad, but by encouraging and teaching the good." For people who make this argument assume, tacitly, that it would be a good thing if the relationships of male homosexuals were more permanent, and since they would not be more permanent if the men involved did not want them to be so, we must conclude that the goodness includes the desire, now made more frequent, of the men to form permanent relationships. In other words, the tacit assumption is not simply that a law permitting male-male pseudogamy would be just, but that it would make many of the men themselves more virtuous.
And that, dear readers, gives the game away. We may then argue — indeed we must argue — about what in sexual matters is good and bad, what will make us a more virtuous or a more vicious people, what we seek to affirm in marriage, what is good or bad for a child to see as allowable behavior, what we look for from manhood and womanhood, and so forth. We may not simply assume that people are inert and utterly invariable from time to time and culture to culture. We do actually have the right to ask, "What kind of society will this law help to produce?" And, "What virtues — or vices — will this law or custom help to teach?"