My FindLaw column this week discusses a petition that the NMPF (National Milk Producers Federation) filed with the FDA, asking the latter to make producers of nondairy food stop using words like "milk," "ice-cream," "cheese," "yogurt," and "sour cream" to label their products. As I explain, the FDA has issued regulations that affirm the NMPF's approach to the "dairy" words, defining milk as lacteal secretions from a cow. My column assesses the merits of the claim that it is nondairy producers who are misleading consumers about their products.
In this post, I want to use the non-dairy milk debate as a lens through which to consider the more general idea of substitutability. Specifically, when do people consider it accurate and fair to say that one product, idea, or practice is meaningfully equivalent to another?
Milk and dairy products are actually a paradoxical example of the substitutability phenomenon. On the one hand is the morality of consuming them. In the eyes of dairy producers, milk is a food product that serves to provide nourishment and bring consumers culinary pleasure. In that sense, its producers would like us to regard milk as no different from any other food product -- including plant-based items such as rice, beans, cashews, bananas, tofu, and coconut-based ice-creams. In the eyes of those who oppose cruelty to animals, by contrast, dairy milk and its derivatives are very different from plant-based foods, because they are products created by impregnating cows (to induce lactation) and then by, after birth, removing calves from their mothers (as the cows bellow and scream for days) so that humans can feed on the milk, while the babies themselves become veal (if male and, often, if female) or themselves become mothers who will lose their babies every year. In addition, for those who oppose animal cruelty, consuming dairy is unacceptable because it supports the slaughter of dairy cows once they are "spent" (i.e., no longer productive of enough dairy milk to satisfy human demand). On every farm, dairy cows suffer and are eventually sent to slaughter. No matter how similar the flavor, then, there is all the moral difference in the world between consuming the milk of a dairy cow and consuming soy milk, almond milk, or another plant-based alternative.
On the other hand is the flavor and nutrition available in the animal-based versus plant-based milks. Here it is the dairy producers (the human ones, that is) who decry the suggestion that almond milk might be comparable to the lacteal secretions of a cow, in terms of flavor or nutritional value. Here, the NMPF (as a representative of dairy producers) would like people to think of these products as entirely un-substitutable and object to the use of terms (and refrigerator space) that might "mislead" consumers into viewing non-dairy milks and ice-creams as proper substitutes for their dairy analogues. From the perspective of those who value cows as beings who deserve to be free of harm and slaughter, by contrast, the notion that one may substitute almond milk or hazelnut milk or soy milk, etc., for dairy is quite attractive and not at all threatening. Indeed, as my column elaborates, the non-dairy versions of dairy products offer people the opportunity to enjoy familiar experiences without taking on the increased risk of cancer, heart disease, and diabetes associated with animal protein in general and dairy protein in particular, even apart from the cruelty to animals entailed in all of animal agriculture.
A second area in which the question of substitutability arises is that of marriage between people who have historically been barred from marrying each other. I focus here on same-sex marriage, although similar controversies surrounded interracial marriage. While there are still those who believe that the law may and ought to prohibit people from having same-sex sexual relationships, much of the current debate -- particularly after the decision in Lawrence v. Texas -- is about whether two people of the same sex ought to be permitted to marry each other. President Obama has said that "I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman." In his view, then, and that of many others, marriage is by definition a relationship between a man and a woman. Like the NMPF with respect to non-dairy alternatives to bovine lacteal secretions, such opponents of gay marriage do not argue that alternatives should be legally prohibited, but simply that they should not be permitted to have the label "marriage."
The arguments about gay marriage, moreover, are strikingly similar to those within the dairy/non-dairy milk labeling context (though with less of the paradox discussed earlier). The federal "Defense of Marriage Act" is, in its very title, premised on the assumption that the quality of the marriage product, when utilized in the traditional manner by opposite sex couples, will be diluted and undermined by its availability to same sex couples. Part of how opponents of same-sex marriage conceive of marriage, then, is as an institution that is essentially and inherently limited to same-sex couples, just as the NMPF (as enabled by the FDA) conceives of "milk" as a product that is essentially and inherently comprised of lacteal secretions.
Another interesting parallel between the substitutability issue in milks and in marriage is the fact that consumers of both non-dairy milks and same-sex marriage are not interested in consuming the dairy/heterosexual analogues of what they seek. Like a vegan who would avoid purchasing a product whose label confusingly suggested that it contained lacteal secretions, a gay man or a lesbian would be uninterested in entering a marriage union that included a partner of the opposite sex. Soy milk serves as a functional equivalent of dairy milk, even as the latter is unappealing to vegans, just as marriage between same-sex couples serves as a functional equivalent of opposite-sex marriage, even as gay people have no interest in entering opposite-sex marriage unions (and therefore rightly reject the availability of opposite-sex marriage to everyone, gay and straight alike, as providing them with equal access to marriage).
In the case of both non-dairy milk and same-sex marriage, more is implicated than mere semantics. Those who support access to non-dairy milk products level moral criticism at the consumption of nonhuman lacteal secretions as participation in the cruel and inhumane treatment of sentient animals. The notion that only those who traffic in such cruelty may use the word "milk" is offensive to many vegans. Indeed, vegans hope some day to abolish the infliction of suffering and death on nonhumans, such that only babies will consume lacteal secretions, and the secretions will be those of the babies' mothers, lovingly given rather than taken through violence.
Similarly, supporters of same-sex marriage find offensive and ugly the desire to discriminate against gay couples by denying them the label that society associates with permanent, loving relationships in which participants care for one another, sexually, financially, and emotionally, in a setting that the law supports and nurtures. Similarly as well, many gay people -- even as they press for equal marriage rights -- find the institution of marriage largely one of exclusion, discrimination, and oppression. It is an institution that implicitly embraces, for example, the notion -- ably developed by Martha Fineman in The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies, that sexually-involved couples provide the most (or the only) suitable venue in which to raise children and thus diminishes alternative families in which either single individuals or extended kinship networks not defined by sexuality take care of the dependencies that inevitably arise in people's lives, due to infancy, illness, disability, and aging.
I cannot, of course, discuss the moral content of same-sex marriage debates without mentioning the fact that many opponents of same-sex marriage believe that gay relationships are either wrong (because they are sinful as a religious matter) or morally inferior to their heterosexual analogues and thus undeserving of the same label, "marriage." I mention this moral objection second rather than first, however, because it is easy to forget -- in the culture's single-minded focus on religion as the source and meaning of all morality -- that discrimination is a moral wrong and equality a moral aspiration. While people may point to verses in the Bible/Old Testament to argue that same-sex couplings are immoral, there is little to ground the contention that these verses reflect moral truth (any more than do, for example, the verses encouraging slavery, wars of conquest, or the killing of innocent civilians, including children, after battle). The notion that loving relationships among same-sex couples are morally wrong or undeserving of equal status and nomenclature is therefore an ipse dixit (and a pernicious one, at that) hardly worthy of the label "moral argument."
Suggesting equivalences is, of course, always a tricky business. Almost by definition, when we compare one thing to another,the two things are going to be different in some ways, alike in others. But comparison and analogy is how we think and how we grow. We take an idea that is comfortable and known and learn that it has application beyond the familiar.
Only four years ago, I thought that cheese and dairy were irreplaceable products. It turns out I was wrong, and the use of "milk," "cheese," and other conventionally dairy words on non-dairy food labels helped me to find out easily how wrong I was. Only twenty-four years ago, the U.S. Supreme Court upheld a criminal law providing for incarceration as a punishment for same-sex intimacy. Since then, our society has grown more empathic and just on questions of sexual orientation and equality.
We ought now to recognize that the commitment and seriousness of marriage does not rest on the respective sexes of the parties; the notion that it does simply reflects what we are used to seeing, just as so many of us are used to consuming bovine lacteal secretions without thinking about the harm we support in doing so or the reality that such food is not at all necessary to a pleasurable and fulfilling life. In the spirit of compassion and empathy, we must resist the familiarity of injustice and turn words that once meant cruelty and discrimination into words that mean respect and decency toward our fellow beings in the world, human and nonhuman alike.