The U.S. Supreme Court invokes the Chinese philosopher, with decidedly mixed results.
Americans have expressed either joy or outrage over the Supreme Court’s recent decision in Obergefell v. Hodges that the Fourteenth Amendment requires every state to allow marriage between two people of the same sex. However, one issue has received little attention in the U.S., while igniting a storm of discussion in China: Justice Anthony Kennedy’s citation of Confucius in his majority decision. And almost no one has remarked on Justice Antonin Scalia’s inflammatory response to Kennedy’s use of Confucius. Let’s examine what Kennedy said, how the Chinese have reacted to it, whether Kennedy got Confucius right, and what Scalia’s rebuttal to Confucius represents.
Kennedy v. Scalia
In his majority decision, Kennedy wrote, “The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. … 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). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, ‘The first bond of society is marriage; next, children; and then the family.’ See De Officiis 57 (W. Miller transl. 1913).” Scalia wrote an impassioned dissenting opinion, which includes the following comment (in note 22): “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.” Later, Scalia states that “the world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”
Kennedy’s citation of Confucius immediately attracted the interest of Chinese netizens and stoked the fire of an ongoing debate in China over gay rights. The situation for gays and lesbians in China is complex. It has been argued that traditional Chinese culture was comparatively tolerant of homosexuality, and that the tendency to treat homosexuality as a perversion only developed as part of Chinese efforts to emulate the West and modernize after the Opium Wars. There are indications that the majority of Chinese are now returning to traditional tolerance: Homosexuality has been decriminalized since 1997, and was removed from the official list of mental illnesses in 2001. Moreover, a 2014 poll by the Chinese Journal of Human Sexuality suggests that 85 percent of Chinese support same-sex marriage, with only 2 percent opposing it, and 13 percent undecided. Ironically, “comrade,” long a term for a loyal fellow Communist, is now slang for a gay person. Consequently, when Justice John Roberts cited the supposed views of “Han Chinese” against same-sex marriage in his own dissent, he was dealing with a much more complex topic than he realized.
However, Chinese parents and society as a whole put intense pressure on young people to marry and produce offspring. According to one estimate, 90 percent of gay men in China marry women, often without telling them their actual sexual orientation. Understandably, this can lead to frustration, adultery, and unhappiness. This emphasis on producing children can be traced in part to the Confucian tradition. Mencius, one of the most influential Confucian philosophers of all time, argued that to fail to have children is the most unfilial of all acts. Consequently, the online edition of The People’s Daily, a source with close ties to the Chinese government, claimed that Chinese were “baffled” by Kennedy’s use of Confucius. Professor Zeng Yi of the Philosophy Department of Tongji University was blunter, stating that Kennedy had “distorted” Confucius, and opining that any Confucian should view homosexuality as “a crime against humanity.” Critics like Zeng point out that the Classic of Changes, a seminal Confucian treatise of divination and cosmology, claims that traditional gender identities are an immutable reflection of cosmic principles. Several Chinese commentators have also argued that the translation Kennedy relied on was simply mistaken. Was it?
Did Kennedy Get Confucius Right?
Kennedy’s majority opinion paraphrases an English translation of the Book of Rites by James Legge, a Victorian-era Scottish missionary and Sinologist. The Book of Rites has been treated as canonical by Confucians for millennia, and the particular phrase Kennedy refers to is from a long dialogue between Confucius and Duke Ai of Lu. On p. 266 of Legge’s translation we find: “Yes, (this) ceremony (of marriage) lies at the foundation of government!” If we translate the original Chinese as literally as possible, we get, “Ceremonies, are they not the root of government?!” We can see that Legge has interpolated some words. In fairness, he uses parentheses to warn us that he has done this, and the Chinese news magazine The Paper defended Legge’s translation. Confucius and Ai have been discussing the marriage ceremony for several pages, so it is plausible that “ceremony” here is short for “marriage ceremony.” On the other hand, the well-known Chinese blogger Fang Zhouzi argued that in fact Confucius is discussing in this passage the ceremonies appropriate to the wedding of the ruler of a state, not the institution of marriage in general, and certainly not the marriage of common people.
While the particular phrase that Kennedy relies on may or may not be correctly translated, his general point about the centrality of marriage as a social institution is absolutely Confucian. Earlier in the same chapter from the Book of Rites, Confucius explains that ceremonies, including marriage ceremonies, are central to all of human life. Moreover, government has its basis in love and respect, and “great marriage” is so important because it is the ultimate expression of both. This is consistent with Kennedy’s argument that gays and lesbians cannot legitimately be excluded from the social institution of marriage, because it is a unique expression of love and respect.
Kennedy’s citation of Confucius has been noted both in the West and, to a greater extent, in China. However, Scalia’s response to Kennedy’s invocation of Confucius has received surprisingly little attention, despite its inflammatory nature.
Did Scalia’s Rebuttal Cross the Line?
There is something undeniably unsettling about Scalia’s dismissal of Kennedy’s argument as “mystical aphorisms of the fortune cookie.” It is difficult to believe that, in saying this, Scalia does not have Kennedy’s reference to Confucius in mind. Fortune cookies are not authentic Chinese cuisine, and I have heard it suggested that this was Scalia’s point: to criticize Kennedy for his inauthentic appropriation of Confucius. However, this requires a positively Straussian level of esoteric interpretation. We would have to assume that Scalia knows the provenance of fortune cookies, and that he has an opinion about the accuracy of Legge’s translation of Classical Chinese, and that he wanted readers of his dissent to discover the connection between these points without his stating it explicitly. No, there is no plausible reason for him to refer to fortune cookies other than to dismiss the teachings of Confucius as the sort of nonsense only a “hippie” would appeal to (to use another of his terms of reproach). And notice that Scalia does not say anything that might be interpreted as an aspersion on the great Roman philosopher Cicero, even though Kennedy also cites him. (Imagine the response, though, if Scalia had complained that Kennedy was lowering the intellectual standards of the Court by introducing “Chianti-soaked rants more appropriate over a dish of pasta.”)
If you are offended when someone says you are wrong, you have no business claiming to be any kind of intellectual. But there is a great difference between a sincerely reasoned argument and a sneering dismissal. As English clergyman William Paley (1743–1805) lamented, “Who can refute a sneer?” After all, “such attacks do their execution without inquiry.” As someone who has spent decades teaching Chinese philosophy and fighting for greater acceptance of it in the West, I seldom encounter genuine arguments for why Confucianism, or Daoism, or Buddhism is unworthy of study. When I do, I welcome them, because I can address them directly and definitively. What is much more common is the insidious effect of a mocking dismissal.
The sad reality is that Scalia’s comment is an manifestation of what Edward Said labeled “Orientalism”: the view that everything from Egypt to Japan is essentially the same, and is the polar opposite of the West. Westerners are rational, scientific, and philosophical; “Orientals” are motivated only by passions, superstitions, and folk sayings. Those under the influence of Orientalism do not need to really read Chinese texts or take their arguments seriously, because they come pre-interpreted. And their interpretation guarantees that what Chinese, Indian, Middle Eastern or other non-Western thinkers have to say is at best quaint, at worst fatuous.
The great philosophers of the East deserve better.
Bryan W. Van Norden is a professor of philosophy at Vassar College