I've been thinking more about the California gay marriage decision and Confucianism. Thanks to the comments from my last, brief post, I have a new idea: a modern Confucian would be more likely to accept civil unions for gay couples than marriage. This is a tentative conclusion, the reasoning for which I spell out below, and I welcome all comments and criticisms.
He argues, from Analects 7.1, that Confucius understood himself to be a defender of tradition, not an innovator. Confining marriage to heterosexual couples is generally recognized as the traditional practice; so, Confucius would likely be against the innovation of gay marriage. I generally disagree with this argument.
First, while Confucius does present himself as against innovation in 7.1, various commentators (Hall and Ames; Leys) have argued that, in fact, Confucius was very creative in his thinking. The idea that hereditary status was not a sufficient claim for legitimate rule was quite radical in its time. To the extent to which Confucius and Mencius looked toward a moral meritocracy (i.e. the morally good should rule), they pushed against the political status quo. This is especially evident in Mencius. Indeed, Mencius is so problematic to established powers-that-be, it is said (pdf file!) Zhu Yuanzhang, the founder of the Ming Dynasty, decreed that this line from Mencius be deleted:
The people are the most elevated, next comes the state, the sovereign comes last.
We could also invoke Analects 9.3, in which Confucius creatively adapts specific elements of Ritual to suit his immediate purposes, to suggest that Confucians do not simply defend tradition for tradition's sake. Tradition is important, to be sure, but it must be enacted in relation to the contemporary ethical context. If Humanity is best served by revising tradition, then tradition must be revised.
Yet even if we accept (and I suspect not everyone will) that Confucius was, in fact, more of an innovator than he lets on, I think Western Confucian's point should give us some pause. Modern Confucians would be careful in how and when and how far they revise tradition. They might be more comfortable with incremental steps: choosing a silk cap instead of a linen cap (Analects 9.3), not throwing out the cap altogether. And gay marriage is a rather significant socio-cultural change. It's big. And that might mean Confucians, in seeking some sort of balance between contemporary Humanity and established tradition, might gravitate toward civil unions, at least for a time, instead of marriage.
One of the students in my tutorial this semester also raised in interesting point when I broached the possibility of Confucian gay marriage: does it violate the rectification of names (Analects 13.3)? The idea here is that "marriage" generally is taken to connote heterosexual unions. To move to gay marriage delinks the practice from the name. I don't see this as an insurmountable problem, insofar as I understand the rectification of names to demand that we live up to certain standards of Humanity (i.e. if a "father" is not living up to the duties of a "father," then he should not be allowed to use the name "father"). If the moral purpose of marriage is a life-long commitment to a particular loving relationship, and the family building possibilities that it brings, then it would seem that the practice of gay couples committing themselves to one and other and raising children in a supportive and loving environment meets the Humane (ren) standards of "marriage".
The issue, however, might be a matter of time and timing. It takes time for society to come to understand that gay marriage is as much marriage as any other sort of marriage. This would not absolutely disallow gay marriage, but it might militate for some transitional period during which gay couples could enter into civil unions (with all the legal recognitions and rights of "marriage") that would establish a broader social understanding of the good of gay marriage.
I could see how gay people would chafe at this, arguing, as the California Supreme Court does, that there is no compelling state interest in denying them all of the benefits, cultural as well as legal, of marriage. But the problem here is to derive a Confucian position on the issue, not one that simply puts a Confucian facade on a California perspective (full disclosure: I am perfectly comfortable with extending the practice of marriage to gay people - but this post is not about my personal position, but what the most plausible modern Confucian position might be).
Bottom line: Confucians would lean toward civil unions at this point, but would be open to gay marriage in the future, perhaps after more states have taken similar moves.
Justsomeguy also raises an important point when he raises the yin/yang thing:
Yin/Yang cosmology. While the Analects are fairly silent on this issue, Confucius's appreciation for the Yijing can be taken as an endorsement of that formulation. While they are both ultimately divisible into further aspects of yin and yang (a possible work around), I'm not sure how he'd view double yin or double yang relationships given the way this system is devised. They would be unbalanced.
Again, I do not think this is a fatal objection. We are not talking about a very large sector of the population, after all. What percentage of the US population identifies as gay or lesbian? And what percentage of those people seeks a married relationship? And what percentage of all marriages (say, in Massachusetts where it is allowed) are gay marriages? I don't have these numbers (but would love it if someone sent them in!) but I suspect in all cases they are quite small, well below 10% in all cases. Allowing gay marriage, then, whatever yin/yang "imbalance" it might bring, would not have a significant effect on the yin/yang balance of society at large. Indeed, the overwhelming experience in Massachusetts, where I live, is that ultimately gay marriage is not that big a deal. It hardly effects the daily life, for good or ill, of the vast majority of people. Once the practice is established, it's not that big a deal (it's getting it established that is big).
But the yin/yang point might be important in another way. It suggests that gay marriage is different from heterosexual marriage: the former is double yin or double yang, and the latter is yin/yang. Again that difference may not be enough to reject it on Confucian grounds, but it is a difference that might have to be recognized in some manner.
I should add here that a modern Confucian argument would not seek universal rights claims that apply to all individuals, as the California Supreme Court does. "Rights" is not a Confucian concept, even though a certain ethical universalism might apply. It is proper, from a Confucian perspective, to treat different things differently. A father should shield his son from the law when he steals a sheep, but should presumably turn in a stranger who steals a sheep, because a son is not a stranger, the two are different.
Thus, treating gay unions in a manner distinct from heterosexual unions would be permissible for a Confucian. And, given the various points made above, might be preferable, at least for a time. That different treatment, however, is bounded by the general standard of Humanity (so, certain tangible benefits should not be withheld if so doing makes it harder to maintain strong and loving relationships).
And so, I am drawn to the conclusion that a modern Confucian in California would, today, be more likely to advocate for civil unions for gays and lesbians and less likely to back gay marriage.