BACKGROUND: LEGALIZING SAME-SEX MARRIAGE IN THE UNITED STATES

In 2015, the American Supreme Court legalized same-sex marriage with 5:4 votes (Supreme Court 2015). Justice Anthony Kennedy, in the majority opinion that is in favor of legalizing same-sex marriage, quoted Confucius, “Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967)” (Supreme Court 2015, “opinion of the court” section, 3). That is, he used Confucius's words to show that marriage is an important institution, and not to directly support homosexuality and same-sex marriage. When the ruling was reported in China, the public perception is that Confucius was taken as approving of same-sex marriage, either due to some misleading reports or due to the failure of some readers to read the reports carefully. Many intellectuals sympathetic to Confucianism in mainland China (for short mainland Confucians) were furious. Indeed, Confucianism is often considered conservative or “reactionary,” and many mainland Confucians do take rather conservative stance on many social issues. On the issue of same-sex marriage, according to the Confucian opponents, the Confucian yin–yang concept simply means that marriage has to be between a man and a woman, and to claim that Confucianism supports same-sex marriage is outrageous. Many spirited responses were made, and among them, I found Zhang, Xianglong 张祥龙's articles one of the best ones, in terms of its scholarship, its interpretations and defense of relevant Confucian principles, as well as its adjustments of these principles to newer circumstances, and its being reasonable and moderate from a non-Confucian point of view.Footnote ¹ In this paper, I will first explain the background of how Confucius was quoted to support the ruling to legalize same-sex marriage, and then I will present Zhang's responses to this issue. I will offer my critical comments on his responses, and will show how, based on Confucian principles that Zhang would also endorse, we can answer his concerns and offer a Confucian endorsement of same-sex marriage.Footnote ² By showing how Confucianism, often considered a non-liberal and conservative doctrine, can endorse same-sex marriage, I hope to enrich the theoretical basis for same-sex marriage and to show a different version of Confucianism that challenges the received perception of Confucianism that it is deeply conservative, a perception that often lies at the core of the rejection of its contemporary relevance, especially by the so-called “liberals” in China and elsewhere.

In order to understand why Confucius was quoted in the American Supreme Court ruling, we need to understand how the issue of same-sex marriage has been approached in the American setting. As we know, many Christian conservatives in the United States, especially the so-called fundamentalists, would not even accept homosexuality, let alone same-sex marriages. Certain claims in the Bible seem to support their stance.Footnote ³ For example, in the Old Testament, the Lord is recorded to have said the following to Moses,

In the New Testament, Paul wrote,

On surface, these two passages condemn homosexuality. But we know that there are different versions of the Bible, and more importantly, there are also different interpretations of it, some of which can be rather different from the literal or apparent interpretations. One obvious example is the claim in the Bible that God created the world in 7 days, and many Christians today probably would not take a literal reading of this claim. Christian fundamentalists, however, may have taken literal readings of the passages that seem to condemn homosexuality.

Religious moderates, especially those who accept the idea that homosexuality is inborn or is determined very early on in life, and cannot be changed, may choose to accept or tolerate homosexuality. But without legal protections, those in homosexual relationships may encounter problems, such as not being able to make medical decisions when the other party is unconscious, complexities with regard to inheritance when the other party passes away, and so on. A possible answer to these problems is a civil union. Through it, although the two are still not considered married couples by law, they can enjoy many civil privileges and rights as couples. This solution does not go as far as endorsing same-sex marriage, but is an expression of Christian love and liberal tolerance, meeting many requests of those in homosexual relations.

To this religiously moderate solution, homosexuals and those who support them can argue that homosexuals also have a desire to form families, and to enter the institution of marriage is a human right. A small irony here is that the rights language that is used here is based on individualism, but the content of this right is to have a family which has the dimension of transcending the individual. A perennial challenge to individual liberty is whether one can use this liberty to choose to be unfree, for example, to become a slave of another's. The problem here is not that extreme. Nonetheless, to enter a family relation means to take up the family duties and relevant social responsibilities, which will pose a limit on individual liberty. The challenge this argument for same-sex marriage poses to religious moderates, however, is far more serious. For family values are what American religious conservatives have always supported. The desire for forming families by homosexuals, then, seems to be a blessing to the religious conservatives, and is hard to reject.Footnote ⁴ To illustrate the desire for entering the institution of marriage and family is also the reason for Justice Kennedy to quote Confucius: by quoting Confucius's, Cicero's, and other non-Christian sages' words on the centrality of marriage and family to human life, he wishes to show that to enter marriage and to form a family on that basis is a human value that transcends time, space, and any particular people.

But there is a problem with Kennedy's quote of Confucius: Confucius never literally said what he quoted in the book he referred to (the Li Chi, or Li Ji in pin yin). In one of his articles, Zhang argued, convincingly, that Justice Kennedy was paraphrasing Confucius, and his paraphrasing was based on this line (Zhang Reference Zhang2016, 66), “Rituals are indeed the foundation of governance” (The Ai Gong Wen Chapter, Li Ji).Footnote ⁵ The discrepancy between the original quote and Kennedy's paraphrasing may have been the result of the translation he used: the sinologist James Legge's (outdated) translation. In this translation, the above direct quote is translated as “Yes, (this) ceremony (of marriage) lies at the foundation of government!”Footnote ⁶ A crucial difference is that Legge added the word “marriage” in the parentheses. In the context of this quote, Confucius was talking to a feudal lord about marriages of the ruler of a feudal state, and so Legge was not completely wrong to add “marriage” in the parentheses. But he did not make it clear that this was his own understanding, and not a literal translation. When Justice Kennedy paraphrased this line, he omitted “ceremony,” which was in the original quote in Chinese, and used “marriage” instead, which was actually Legge's own interpretation and not from the original quote. This is why when mainland Confucians heard about this quote, they were puzzled by it, because apparently, Confucius never literally made that statement.

In spite of this problem with his paraphrasing, Justice Kennedy did not misuse Confucius here. For Confucius in this quote and in other places did emphasize on the sanctity of marriage and family. From Confucius's perspective, one cannot reduce the family to civil union, and one cannot reject homosexuals' demand for marriage by arguing that civil union and all the conveniences that come with it are sufficient. It seems that a Confucian (and a Christian) who recognizes the special status of the family cannot reject legalizing same-sex marriages, as long as they endorse the idea of homosexual relations and civil union. Justice Kennedy seems to think this way as well. For a Confucian who still rejects same-sex marriage, then, given his or her recognition of the sanctity of the family, the difficult task is to explain why same-sex marriages cannot be allowed, when homosexuality and civil unions already are.

THE CONFUCIAN STANCE ACCORDING TO ZHANG

As was mentioned, many mainland Confucians were infuriated by Justice Kennedy's use of Confucius to support the legalization of same-sex marriage. They had little charitable understanding of issues related to same-sex marriages, and did not address any apparently justifiable concerns from homosexuals. Instead, they held rather hostile views toward homosexuality, let alone civil unions between same-sex people or even same-sex marriages.Footnote ⁷ Their anger and hateful words are partly due to the misleading report on the Kennedy quote, but the latter is a contributing factor at best. As was shown in the previous section, to accept homosexuality and civil union is the pre-condition to discuss same-sex marriage. Otherwise, the issue is really about whether homosexuality is acceptable or not. In this sense, these mainland Confucians, like Christian fundamentalists, were not even discussing the issue of same-sex marriage per se, and thus discussing their positions is not directly relevant to the central concern of this paper, which is the Confucian position on same-sex marriage.Footnote ⁸

In contrast, Zhang Xianglong's position was far more moderate. He was rather tolerant toward homosexuality and civil unions. This is partly due to the fact that he rejected the above essentialized interpretation of yin and yang. Although he eventually rejected same-sex marriages on a Confucian ground, he did try to address some possible objections. On the basis of his arguments, I will push the discussion a little further, and offer a Confucian endorsement of same-sex marriages.

The theoretical foundation for Zhang's Confucian perspective is the Chinese classic, The Book of Change (I Ching or Yi Jing, the latter spelling will be used in the rest of this paper), which he considered an ancient tradition that was a root of Chinese philosophical thinking. But he acknowledged the fact that, when addressing issues of gender and same-sex marriage, the pairs of concepts he would use, such as yin–yang, Heaven–Earth, and hard–soft, “only appeared in the Yi Commentaries (易传),Footnote ⁹ which were composed later (roughly during the Warring States period)” (Zhang Reference Zhang2007, 218).Footnote ¹⁰ He argued that the kun and qian trigrams should be interpreted as yin and yang, and yin and yang should be further interpreted as female and male (Zhang Reference Zhang2007, 221). After showing how important the pair of concepts yin and yang was in early classics, he concluded, “in the center of the mainstream of ancient Chinese philosophical thinking lies gender” (Zhang Reference Zhang2007, 221–22). He then showed the different implications between the gendered philosophical tradition, and the Western, genderless philosophical tradition (Zhang Reference Zhang2007, 222–26).

More directly related to the theme of this paper, Zhang quoted a passage from the Xu Gua (序卦) Chapter of the Yi Commentaries,

Based on this quote, he argued,

He then pointed out, in the Ai Gong Wen Chapter of the Li Ji, from which Justice Kennedy got his quote, there are two relevant passages. These passages read,

And

Zhang then concluded,

Therefore, Zhang argued that this understanding of the significance of marriage is different from the Supreme Court ruling on same-sex marriage.

Zhang further pointed out, from a Confucian perspective, in the relations between husbands and wives, or yin and yang, it is not the case that yang/male simply overwhelms yin/female; rather, “on the basis of interactions and complementarity between the two genders, there is some sort of promoting yang and lowering yin” (Zhang Reference Zhang2007, 229). Although there is still a hierarchy between yin and yang, with the latter promoted over the former, “the basic tone is the complementary relation between the two, which leads to reproduction, after all” (Zhang Reference Zhang2007, 238). Zhang himself had reservations of the hierarchy, considering it a historical product.Footnote ¹² But even this hierarchy is not a purely oppressive relation between master and slave. When, in traditional China, women's status was lower than it should be, this hierarchical view would lead to sympathy to women and an effort to improve on women's status. After all, women still enjoy a certain status, and not an absolute no-status.

This “flexible,” non-essentializing, and non-dualistic view of the relations between husbands and wives can be further extended to apply to the issue of homosexuality. Although Zhang argued that yin and yang are mainly referred to as women and men,

Indeed, if we look at the aforementioned passage from the Xu Gua Chapter of the Yi Commentaries he quoted, we can see that it was talking about the mainstream of the relations that are begotten by Heaven and Earth, and it does not exclude other less-than-common possibilities.

Furthermore, Zhang argued that since Confucian philosophy (in his reading) acknowledged the complementarity and mutual production between yin and yang, and emphasized on change, genders are not “determined by some ready-made ‘gender-essence’ or ‘gender-concept’,” but are “constituted or produced by human beings’ existential activities and opportunities.” Indeed, Zhang's use of “gender” here is in line with the concept of gender that is distinguished from sex, a distinction clearly illustrated by Sin Yee Chan:

For Zhang, although the distinction between yin and yang or female and male—the gender distinction—is not an unchangeable essence, it has its natural foundation—in the “sex differences,” if we use Chan's gender–sex distinction. Therefore, the Confucian position, as Zhang understood it, is different from both the aforementioned Christian fundamentalists' (as well as the aforementioned Confucian ultra-conservatives') position, and from the position that gender and sexual orientation are merely artificially and arbitrarily constituted (Zhang Reference Zhang2007, 232).

More specifically, according to Zhang, the “uncertainty in the transformation and production of yin and yang” and the “endless change and transformation” mean that different from Christianity, “there are no absolute and determinate types” in Confucianism. Although man and woman are “the typical embodiments of qian and kun, or yin and yang pairs,”

This means that Confucians should not find homosexuality strange and disturbing. But different from the ancient “Greeks, and the modern constructivists who believe that ‘anything goes’” and deny the significance of the distinction of sexual orientations, Confucians believe that “heterosexuality, as the embodiment of the original mechanism of yin-yang production” is significantly different from homosexuals (non-ying–yang-pairs) in terms of reproduction, “and marriage that is based on heterosexuality, in a legal and contemporary ritualistic sense, is incomparable with the union among homosexuals” (Zhang Reference Zhang2016, 65).

At the same time, Zhang also pointed out that it is not the case that homosexuality has nothing to do with human reproduction. He referred to the theory of Wilson, a founder of social biology, and argued that the existence of a few homosexuals in hunter-gatherer societies can be of help to the raising of children by people in their group.Footnote ¹³ For they do not have children of their own to raise, and can thus help out in the raising of children by others. They can also contribute to the reproduction in the group through their beneficial roles as protectors of religion, art, and knowledge (ibid). He even argued that the principle of reproduction that is gender-based—or, in the language of the gender–sex distinction, sex-based—is conditioned on the fact that mammals have two sexes, and thus Confucians do not give an absolute status of heterosexual relations, as Christians would. But at the same time, we cannot ignore the biological fact of human beings, and adopt the constructive idea that sexes and sexual orientations can be changed artificially and randomly. He made a profound observation: “constructivism is but the reversion of essentialism” (ibid).

Based on this principled flexibility and tolerance, Zhang concluded that Confucians can accept homosexuality and even civil union. But then he insisted that Confucians still cannot endorse same-sex marriage. He offered the following reasons.

First, same-sex marriage will lead to polygamy (Zhang Reference Zhang2016, 67). He pointed out that this is also one of the reasons offered by Chief Justice John Roberts in his minority opinion over the ruling.Footnote ¹⁴ For

Moreover, Zhang believed that this is not far from sexual promiscuity and bestiality, meaning the total dissolution of marriage as an institution.

Second, same-sex marriage violates the Confucian principle of filial piety. As the early Confucian thinker Mencius put it, “there are three ways for a son to be unfilial, and the gravest is having no heir” (4A26 of the Mencius).Footnote ¹⁵ Even if the same-sex couples can adopt children, the couple's parents' desire for having descendants of blood relations is not met (Zhang Reference Zhang2016, 68).

Third, there is harm done to the children in same-sex families. For Zhang argued that the raising of children by same-sex couples is conducted in an unreal family (Zhang Reference Zhang2016, 68). But why is the same-sex family unreal? He offered no explanation here. In other places, he offered reasons about why raising children by same-sex couples is no good, which might be why he said the same-sex family is unreal. He quoted Chief Justice Roberts's opinion, and argued that the raising of children by their birth parents is the best (Zhang Reference Zhang2016, 69). Raising children by same-sex couples can also influence on children's sexual orientations (making it more likely for the children to become homosexuals). If they do become homosexuals due to the influence, it is more difficult for them to be part of the mainstream society, which is heterosexual. This is considered a harm to the children. But he quickly acknowledged that available research shows that same-sex families have no influence on children's sexual orientation. But he argued that the research is rather limited, and we should not put children under this risk (Zhang Reference Zhang2016, 68).

Fourth, allowing same-sex marriage is de facto encouraging it, and thus cannot make sure such marriages remain as a minority and exceptional cases (Zhang Reference Zhang2016, 69).

A MORE TOLERANT CONFUCIAN POSITION

In the two articles by Zhang, he generalized various aforementioned Confucian stances as the characteristics of Chinse philosophical thinking, and opposed them to those of Western philosophy. He believed that there is one common characteristic of Western civilization that is rooted in Hellenic and Hebrew civilizations, “a dichotomous way of thinking” (Zhang Reference Zhang2016, 64). But the Chinese way of thinking is different. Such kind of contrast between China and the West is rather common among comparative scholars and public intellectuals. But an obvious problem is, isn't this contrast precisely “a dichotomous way of thinking”? This logical quibble aside, we know that both the Chinese and the Western civilizations are complicated systems that have lasted more than 2,000 years, and there have been many different schools within each civilization. Identifying one or two characteristics from so many different schools sounds fishy and even arbitrary. In fact, Zhang himself acknowledged that there are some fundamental differences between Confucianism and Daoism, two schools within Chinese thinking (Zhang Reference Zhang2007, 238).

Within “Confucianism,” the so-called Confucian concepts he used in the discussion of same-sex marriage, yin and yang, are not found in some early Confucian classics, such as the Analects and the Mencius, although he insisted that these classics were still influenced by the grand yin–yang thinking (Zhang Reference Zhang2007, 221).Footnote ¹⁶ Even if yin and yang were considered essential to any Confucian school, not every Confucian would accept the same kind of metaphysics that is built on the yin–yang pair, in particular, with regard to gender, sexuality, and marriage. As we saw, Zhang offered a more flexible reading of the yin–yang pair, but some Confucian “fundamentalists” rejected this flexibility and thus rejected any tolerance of homosexuality.Footnote ¹⁷ To the other end of the spectrum, Chan pushed this flexibility even further in her more comprehensive treatment of the yin–yang pair and homosexuality, and she even questioned whether yin and yang have to mean the female and the male, and even if they did, whether it has to be one male and one female in the spousal relation, which is one of the so-called Five Relationships that are considered essential by Confucians (Chan Reference Chan and Pang-White2016).Footnote ¹⁸

Different from Zhang's stance, the treatment I will offer is not from the Chinese perspective, and not even from the Confucian perspective; rather, it is from merely a Confucian perspective. I will try to identify values that are commonly recognized by various schools within the Confucian tradition, and see how we should address the issue of same-sex marriage by following these values. Different Confucian schools could have different interpretations of these values, based on their own metaphysical and comprehensive doctrines, and I will try to stick to a “thin” reading of these values that could constitute an “overlapping consensus” among these interpretations. These values, so interpreted, and discussions that are built on them, then, may have a stronger appeal among Confucians, and even among non-Confucians.

With regard to same-sex marriage, which Confucian values are relevant, and how they can constitute the overlapping consensus? A key value, in my view, is the centrality of family in Confucian moral and political philosophy and the values associated with it. Zhang also acknowledged this centrality (Zhang Reference Zhang2007, 223). A key role of the family is continuous reproduction.Footnote ¹⁹ Through reproduction, we can become part of a much larger whole that has more than one individual, and has an extension to the past and future. That is, through family, one transcends one's mere individuality, space, and time. Family is the Confucian path for a human being to become God-like and to achieve some form of transcendence.Footnote ²⁰ One's decision, then, should not merely be for one's short-term self-interests, and one has to make sure one does not bring shame, but glory to the ancestors, and leaves enough for the descendants. One is still making a rational decision, but the unit of rational calculation is not the individual anymore, but a family in a broad sense.Footnote ²¹

Applying this idea to same-sex marriage, as Zhang pointed out, Confucians can tolerate homosexuality with the caveat that it does not become mainstream. Otherwise, the reproduction of the human race will be disrupted, given the present biological and technological restrictions. But as long as those who cannot reproduce are of a minority, Confucians can tolerate their existence.

Another related role of the family is that it offers a place for Confucian moral cultivation. The care parents offer is not only necessary for children to grow up physically, but also necessary for them to grow up morally. One learns to care for one's parents through parents' care for him or her, and one then extends this care to others. As Mencius put it,

Through this expansion of care, human society can be bonded together in a harmonious manner, which is an ideal of Confucian politics. Therefore, for Confucians, to have parents–children relations is crucial to a family, although it is debatable whether parents and children have to be connected through blood relations.

For a family to be an effective institution of cultivating morals, certain relations need to be maintained. Relevant to our topic is the idea that “there should be distinctions between husbands and wives” (3A4 of the Mencius). For example, there should be the distinctive roles each of the parents plays in raising a child. Otherwise, why would we need a two-parent family? If it is merely a helping hand, a parent and a domestic help would be just as good. Zhang did not discuss the distinctive roles of the parents, but I am sure this is an idea he would happily endorse.Footnote ²²

There are a few other features of Confucianism that are relevant to our topic. First, although Confucians can respect an individual in that the pursuit of morality should not be imposed on the individual (see, e.g., the story of a farmer of the Song state in 2A2 of the Mencius), they expect an individual to take up familial and social duties to others, rather than doing whatever he or she wants. Second, Confucians do not want to ignore the natural conditions of human existence, but they do not essentialize these conditions, either. Third, the reason that Confucianism can be a tradition over a few thousand years is that it can adapt itself to the new age. It is open to new interpretations of its classics and principles. The room for new interpretation in the case of Confucianism might be greater than in Christianity. For the Bible is supposed to contain the words of God, and God is absolute. Although Confucian classics are considered authoritative, the ideas in them are not God's words or dogmas.

All these values and features, I believe, can be endorsed by the yin–yang-based Confucian metaphysics Zhang developed. If this is the case, let us see if the reasons Zhang used to reject same-sex marriage could really hold up under the scrutiny based on these principles.

A point Zhang made in his third reason to reject same-sex marriage is that to raise a child by his or her biological parents is most beneficial to the child. But there are many examples in which adoptive parents are very caring to their adopted children, and there are also many examples in which biological parents abuse their children. If a reason for Confucians to value family is to use familial care as the starting point of moral cultivation, the central concern for Confucians is to protect and promote the care within a family, and not whether the parents are biological parents or not. One can argue that, statistically, the care biological parents have for their children tends to be stronger than non-biological parents. But this only means that as social policies, we should encourage biological parents to raise their children, but this does not exclude adoptive parents from raising children, as long as they are caring enough.Footnote ²³ After all, in traditional China, Confucians never objected to adoption, and adoption was considered a legitimate way of preserving the family line.Footnote ²⁴ Moreover, if only care from biological parents could be accepted, Confucians should, on a Confucian ground, reject the practice that a divorced or a widowed parent marries someone else, when one party has a child to raise, who is not from this marriage. But this has rarely, if ever, been the case. Therefore, although statistically speaking, children are better raised by their biological parents, Confucians would not completely reject the kind of families in which a parent or even both parents are not biological parents. Besides, the child in a same-sex marriage can be the biological child of one of the parents.

The other point in the third reason Zhang offered is that homosexual families could encourage homosexuality of the children. This objection is related to the fourth reason he offered to reject same-sex marriage. That is, allowing same-sex marriages will lead to more and more same-sex marriages. But what is wrong with more and more same-sex marriages? One possible reason, which was not mentioned by Zhang, is that same-sex marriages violate the Confucian requirement that there be distinctions between husbands and wives. This could also contribute to the validity of Zhang's claim that homosexual families are not real families. But Zhang himself argued that yin and yang do not have to be men and women, and similarly, the distinctive roles in the family do not have to be played by two people of different sexes and even genders. As Zhang noticed, a person in a homosexual relation could have gender tendencies that are different from his or her biological sex. As long as husbands and wives play different roles, this key Confucian family relation is not violated.

The reason Zhang did offer not to encourage same-sex relations is the Confucian principle of continuous reproduction. Even for a non-Confucian, as long as we human beings still need to reproduce through some kind of union between man and woman, and as long as he or she is concerned with the continuation of human species, he or she should be against the possibility that same-sex marriages become the majority form of marriage, again, given the present biological and technological restrictions. It is true that same-sex couples can still reproduce, but for now and in the foreseeable future, the means of reproduction often carry high medical, economic, and social costs (although the medical cost is perhaps lower for lesbian couples than for gay couples). These costs will divert the financial resources away from the needy and the poor, contributing to social injustice. Therefore, from either a Confucian principle of reproduction, the concern with our species' continuation, or the perspective of social justice, we do not want same-sex marriages to become the majority form of marriages.Footnote ²⁵ But even Zhang admitted that homosexual families do not encourage homosexual tendencies of the children, and even if they did, they would not increase the rate of homosexual families significantly if this kind of families is a minority. Moreover, as Chan pointed out, children of same-sex parents can still interact with an aunt or an uncle who plays the role of “surrogate parent” and who is the opposite sex to their parents (Chan Reference Chan and Pang-White2016, 194), and the children can also be in close contact with relatives and parents' friends who are in heterosexual relationships. These could mitigate the effect on children's sexual orientation imposed by their homosexual parents, if such an effect does exist. In general, legalization of same-sex marriages does not mean that it will become the majority of marriages, especially if we believe in our general tendencies as the result of evolution (obviously, a species that can only reproduce through heterosexual intercourse, but has the majority being homosexuals will not survive), and if we promote heterosexual marriages through policies and public opinion.

Let me try to illustrate this point from another perspective. If Confucians reject same-sex marriages on the basis of the principle of continuous reproduction, Confucians should also reject heterosexual marriages in which the couples refuse to have children. In fact, from a Confucian point of view, these families are even more objectionable than same-sex couples who would like to have children. Still, the key here is not to let same-sex marriages and heterosexual and yet childless (by choice) families become the majority. In fact, Confucians encountered similar challenges in the past, before same-sex marriages became an issue. They are posed by the introduction of Buddhism (and later Catholicism). For Buddhist and Catholic monks and nuns are celibate, and refuse to form families, let alone having children by themselves or through adoption. The existence of these people clearly challenges the Confucian principle of continuous reproduction. But Confucians did not reject Buddhism or Catholicism because of their practices of celibacy and the rejection of family, although they were not very comfortable with them. As the late Zhao Puchu (赵朴初), a leader of the Chinese Buddhist society, stated, “only the minority of Buddhist should ‘get out of the family’ [chu jia出家, i.e., becoming monks or nuns]” (Zhao Reference Zhao2014), and this stance of Chinese Buddhists is perhaps why Confucians did not find Buddhism so objectionable.

It should become clear that although I am trying to offer a more moderate Confucian position on same-sex marriage, it is still different from the typical liberal or individualist position. It still tries to use public opinion and social and political policies to encourage heterosexual marriages, and to prevent same-sex marriages from becoming the majority form of marriages. These practices are out of the Confucian emphasis on the social and family duties. One may complain that the Confucian position still gives soft pressure on homosexual couples, although Confucians can argue that this soft pressure is to prevent harm, not harm to one's religious, metaphysical, or other forms of comprehensive beliefs, but harm to the perpetuation of human species and to the interests of the poor and the needy. That is, the Confucian soft pressure may not even violate Mill's idea that liberty should be conditioned on no harm to others. Still, this very liberal Confucian position is different from a typical liberal one.Footnote ²⁶

From the above discussion, we can also respond to the second reason Zhang offered to reject same-sex marriages. That is, not to produce children is unfilial. Again, heterosexual families that refuse to have children, and Buddhist and Catholic monks and nuns are worse offenders to this Confucian principle. In contrast, many homosexuals who wish to form families may have been precisely those among homosexuals who wish to have children. Zhang could argue that the children in homosexual families cannot be biological children of both parents. But as was mentioned earlier, Confucians in the past have never challenged adoption, especially by those who cannot produce children due to biological reasons. After all, according to the interpretation or the “thin” version of Confucianism I offered, the key reason that family is important is that it is an institution for moral cultivation and for going beyond one's mere self, and the biological reasons of perpetuating the blood line or the species are secondary at best. To have biological children is not essential to the Confucian institution of the family.Footnote ²⁷

SLIPPERY SLOPE TO POLYGAMY? A MORE “LIBERAL” CONFUCIAN POSITION

So far, to answer Zhang's reasons not to endorse same-sex marriage, the line of argument is basically that there are some legitimate Confucian concerns with same-sex marriage, but they are not so grave as to force Confucians to reject it. The Confucian position I defend is more tolerant than the one Zhang defended, but it is still less indulging than the typical liberal one. In the following, to address the key element of the sole remaining reason Zhang raised to reject same-sex marriage, I will show that the Confucian position I defend is more liberal or indulging than the typical liberal one.

After answering other concerns Zhang raised from a Confucian perspective, there is still one reason, the first one, which I have not dealt with. Part of his argument here is that to allow same-sex marriages will open the door to bestiality. This is a rather typical argument by American conservatives (and some mainland Chinese Confucians). But to some liberal defenders of same-sex marriage, this accusation does not hold up at all. For they would argue that marriage has to be between adults who can and do consent. We can derive this principle from liberal classics such as John Stuart Mill's On Liberty. Consent, as we commonly understand it, is obviously a capacity only humans have.Footnote ²⁸ Therefore, from some liberals' perspective, to allow same-sex marriages will not open the slippery slope to bestiality.

To put a firm blockage on this slippery slope is actually a bigger challenge to Confucians. If we follow the aforementioned Confucian defense of same-sex marriage, one can argue that bestiality would be acceptable if it is limited in scale. Confucians can insist on the human–beast distinction, and on the idea that marriage is a human relation. In other human relations, Confucians emphasize on the importance of interactions between humans. For example, discussing filial piety, Confucius said,

This seems to resonate, in spirit at least, with the liberal idea of dignity and consent. Then, Confucians can reject bestiality while endorsing same-sex marriages, although they may not be able to do it as straightforwardly as some liberals can.Footnote ²⁹

There is only one argument left in Zhang's first reason that challenges the legalization of same-sex marriage. That is, the defense of same-sex marriage can be easily used to defend polygyny, polyandry, or other forms of polygamy.Footnote ³⁰ Indeed, if we follow the aforementioned liberal criterion of consenting adults, why cannot we allow three or even more people to enter marriage through consent? A popular American TV drama, Big Love, is about Mormon fundamentalists who practice polygamy. Its producers are actually a gay couple. For them, this TV drama is a way to discuss same-sex marriage from a different angle.Footnote ³¹

This connection between plural marriage and same-sex marriage, however, poses a challenge to many liberals and progressives, for although embracing same-sex marriage, they find plural marriage, especially polygyny, objectionable. For them, an easy way out is to reject the connection, but upon reflections, we should see that it is not easy.Footnote ³² They could, for example, reject plural marriage by pointing to the fact that some of the practices of polygyny in the real world are built on the total neglect of women's will. But if we take consenting adults as the precondition for plural marriage, this rejection becomes ineffective. A further source of liberals' objection, I think, may come from a hidden principle most liberals would also embrace, the principle of equality. But it can be argued that there is a conflict between the principle of liberty and the principle of equality, and one cannot hold unto both principles without risking self-contradictions. This issue aside, we can still ask if a liberal who embraces equality has to insist on the idea that marriage is between two people? Why is it that only the consent between two people is in conformity with equality? To make a case for this, one may have to go all the way to some radical left-wing, “progressive,” and feminist ideologies. According to these ideologies, marriage, among other things, has to be built on “real” (rather than formal) equality, including economic, political, and social equality. Polygamy is often the result of inequality in one or more than one of these areas.Footnote ³³ But if marriage has to be built on this radical equality, most marriages in the real world should also be rejected, because people often marry those who are better looking, have better jobs, enjoy better social circles, etc. Therefore, if we do not wish to go this far, and if we reject the radically egalitarian foundation for marriage, the argument for same-sex marriage may indeed be used to defend various forms of plural marriage.

It should be pointed out that there can be other ways to construct a blockage on this slippery slope. One can argue that although in terms of liberty, or in terms of whether adults involved are consenting or not, there might be no distinction between same-sex marriage and plural marriage, the state has a more compelling interest in interfering with the liberty interest in the case of plural marriage than in the case of same-sex marriage. There is a lot of discussion of this issue, and let me just mention two articles. In these articles, March argued “on public policy grounds” (Reference March2011, 248), and Den Otter argued on the ground of “state interest” (Reference Den Otter2015, 1984), that there is no distinction between same-sex marriage and plural marriage. Den Otter's article is more from a constitutional law perspective than March's, but March's article is far more organized and clear. March first pointed out that although the drive for polygamy is not as inborn as homosexuality, it is not an expensive taste that the state can ignore from its constitution. Then, the question is: are there grounds from the constitutional perspective that we can ignore the demand for polygamy while granting same-sex marriage?Footnote ³⁴ That is, the question is whether, on public policy or constitutional grounds, same-sex marriage and polygamy are on equal footing.Footnote ³⁵ He investigated four reasons to deny the equal-footing between the two: gender equality or female autonomy (2011, 258–61), welfare of children (2011, 261–62), fairness of spousal or marital market or unfairly privileging the wealthy (2011, 262–68), the abuse of family subsidies or unfair burdening of society (2011, 268–70), and his conclusion is that none of these reasons holds up under scrutiny.Footnote ³⁶

To be sure, March's and Den Otter's works may not end the debate, and there can be liberal arguments for or against the connection between same-sex marriage and plural marriage. Nonetheless, this is a challenge liberals should be worried about, for many of them, both in the West and in China, do not feel comfortable with accepting polygamy. It is ironical, then, that Zhang should use this argument to challenge same-sex marriage. Historically, Confucians have never insisted on monogamy. A simple fact is that monogamy is an exception in human history. Only through the Westernization of the world has it become the dominant form of marriage. But strictly speaking, there was no polygyny in traditional China, either, if polygyny means one husband and multiple wives. Traditional China allowed one man having only one wife, although he could have a few concubines. Concubines did not enjoy the same status as the wife did, although they were considered lawful members of the family and their children also enjoyed certain rights protected by law and customs, different from mere mistresses and their children. Traditionally, Confucians did not favor men taking concubines, especially not out of the reason that the wife is barren, because doing so may have been the result of pure lust. At best, Confucians were not fiercely objecting to it.Footnote ³⁷

In contrast to traditional Chinese practices, Europeans in the past practiced monogamy. Noble men often had mistresses, even “official mistresses.” They and their children did not have much legal status within the family. Therefore, it is hard to say that such practices are more humane and more equal than traditional Chinese practices in which concubines and their children still enjoyed some status in the family. The traditional European problem persists even in today's societies, in which mistresses have little legal protection. One can argue that the phenomenon that some women choose to become mistresses may be due to economic inequality. This may well be true, especially in contemporary China, where the phenomenon of the so-called “little third” (小三儿, i.e., female mistresses whose partners are often wealthy men) is a widespread social problem. But until we eradicate economic inequality, especially the kind in which the poor cannot even have their basic needs satisfied, isn't it humane to offer some legal protection to those who choose (out of their own free will—“free will” in the common sense of this term) to live with already married people, which is partly driven by economic concerns? Both from a Confucian concern of humane caring, and from the rights concern, this seems to be a reasonable proposal. Even for those who choose to enter marriage with those who have spouses for other reasons than economic concerns, why cannot we endorse them as long as the parties involved consent to it?Footnote ³⁸

Theoretically, as we saw, a hidden reason for some liberals to feel uncomfortable with polygamy is their embrace of some radical form of equality, but this kind of equality is not cherished by Confucians. But are there Confucian concerns that would object to various forms of plural marriage? To have caring relations within the family is a fundamental Confucian value. A family full of hatred, conspiracy, and power struggles is obviously bad from a Confucian point of view. A common perception, especially of those in monogamous societies, is that, statistically, monogamous families may offer more stable and more caring environments for children than non-monogamous families.Footnote ³⁹ But clearly, there are other factors that are detrimental to caring and stable family environments, such as the pressure of daily life in which both parents are working, fight between two parents, hostile divorces, and so on. Confucians should be concerned with these issues, perhaps even more so than whether the family is monogamous or not. Similar to the reasoning with regard to same-sex marriages, even if monogamous families were better at promoting Confucian values than non-monogamous families, Confucians could still accept other forms of marriages than monogamy, as long as political policies and social mores promote monogamous families, and more importantly, stability and care within families.

One problem for Confucians to endorse polygamy is its apparent unfairness to the women involved. But as I argued, the concern with fairness is addressed to some extent when we insist on the consent of the parties involved. As March pointed out, factually, “the vast majority of polygynous families are not as tyrannical or oppressive as some of the extreme cases known to the wider public”; and philosophically, as I already indicated in my explanation of the hidden liberal concern with polygyny, to reject polygyny on the basis of female autonomy would eventually “rest on either philosophically controversial conceptions of free will, or morally controversial conceptions” of a rather high level of autonomy (March Reference March2011, 258–59).

To be clear, gender equality is not a core concern for Confucians, but it is hard to imagine that Confucianism can stay relevant while ignoring the fairness (not any kind of radical equality) to a half of the humanity. Hidden in the practice of polygyny, counter-intuitively, there are also issues of its harm to men, and the threat to the “marital market,” the latter of which is indeed a core Confucian concern. For if rich, powerful, competent, cultured, or handsome men have multiple wives each, other men will have less a chance to find women to marry. For example, among fundamentalist Mormons who practice polygamy, in order to reduce the competition for wives, young boys are pressured to leave the community, who are called “the lost boys.”Footnote ⁴⁰ This is also in line with what the psychologist Roy Baumeister made: when feminists complained that in traditional “patriarchic” societies, it is men who are on top, they ignored the fact that the most pathetic losers in these societies are also men (Reference Baumeister2007). Be the losers men or women, this potential problem of shortage of women in the marital market caused by polygyny seems to be a rather serious problem from a Confucian point of view. Mencius even argued that it was the ruler's duty to make sure men and women who desire to get married get married (1B5 of the Mencius). But the problem may not be as serious as it appears. A precondition for this to become a problem is that when polygamy is allowed, it will become widespread, and polygyny becomes the dominant form. There is indeed a chance for polygyny to become dominant, compared to polyandry, given humans' biological construct, which will be discussed later in this paper. But even if this happened, the number of polygynous families has to be so significant as to create a noticeable imbalance in the marital market. If women have to consent before becoming one of the multiple wives of a man, we can imagine that it is rather difficult for polygyny to become widespread, given the simple fact that we human beings are jealous animals. The “if-everyone-did-it” or the “tragedy of the commons” argument does not really work well here.Footnote ⁴¹ For argument's sake, let us assume that there is a significant number of men who have multiple wives, and the shortage of women for marriage is noticeable. Then, in a small and closed society, some “loser” men would not be able to marry, even if they want to, which is a concern for Confucians. But in a large society that is open to outsiders, the effect of the “significant” number of polygynous families on other men may become insignificant, as long as it remains a relatively minor form of marriage. There can also be a “Ponzi-Scheme” kind of solution. Men who are competed out of the marriage market of their generation can wait for younger women to marry, especially when the men now may have established themselves better, thanks to their older age. Indeed, these may be why, in spite of the gender imbalance in China caused by the one-child policy together with the preference to having sons among traditionally-minded parents, the worry that there will be too many unmarried men in China does not become a reality.Footnote ⁴² In short, as long as polygamy remains as a minor form of marriage in a large and open society, it may not pose a serious problem to Confucians.

There is one more challenge to Confucians if they endorse polygamy. That is, if polygyny is allowed, so should polyandry. In the past, Confucianism co-existed with patriarchic societies, and may have endorsed policies that favored men. It is open to debate whether the pro-patriarchy ideas are rooted in Confucianism, or are merely historical accidents. Biologically, polygyny makes sense to the man in the household because it increases the chance of the spread of his genes. Polyandry, in contrast, does not offer such biological benefits to the woman in the household. Instead, to have a stable family environment for raising her baby is important to the survival of the genes of the mother. Nevertheless, even for a contemporary moderate Confucian, it is hard to imagine that a right should only be granted to those who would enjoy the biological benefits of the right. Rights are designed to protect precisely those who do not have equal strength or do not enjoy equal benefits from the rights. Otherwise, we can eliminate rights, and talk only about power and interests, which would return human beings to the “state of nature,” where might is right. It is reasonable, then, for a Confucian to endorse polyandry.Footnote ⁴³ This is something Confucians, especially the traditionally minded, might not feel comfortable with. But as we saw, an implication of the endorsement of same-sex marriage, i.e., the endorsement of plural marriages, is an even greater challenge to many liberals. As long as Confucians can handle the issue of legally accepting polyandry, they can endorse same-sex marriage in a more consistent manner (embracing both same-sex marriage and polygamy), and their position will be more “liberal” (tolerant of various forms of marriage) than the liberals who heartily support same-sex marriage, but not plural marriages. In short, the endorsement of same-sex marriage is potentially a serious challenge to the aforementioned liberals, not Confucians.