Equal Rights and Gay Marriage

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USS Clueless looks at whether the California initiative making gay marriage illegal is constitutional by California's own constitution. Here's the relevant section:

California Constitution, Article 1, Declaration of Rights, Sec. 7.

(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

My bold claim: all the rhetoric about rights possessed by straight people that gay people lack is completely bogus. However, this statement might give California a reason to overturn the voter initiative banning gay marriage (at least among citizens) on other, really surprising, grounds -- that it's gender discrimination! However, the relevant kind of discrimination is only illegal in states with equal rights for men and women, which California has. However, by the end I'll give enough reasons to think those states should remove such language from their constitutions.

Keep in mind also that I've said in other posts that I think much of the rhetoric on this issue is overheated, even hateful (and that's the case on both sides). I don't see why Christians prioritize this issue above others with more serious consequences. I don't understand why it's the end of the world if something Christians believe is wrong becomes legal, since that happens all the time. I don't get why this small step is supposed to be such a huge modification in the concept of marriage when the huge gulf between the Christian concept of marriage and the one understood by most Americans makes this seem quite small. So take all I say in light of that. My views on this aren't as simple as you might have thought.

Please bear with me on this, since a real analysis of the arguments is going to require Chisholming away at the various options for framing the issue before we get to the punchline. These options all do get mentioned by someone or other, so it's worth looking at all of them.

The claim of the movement to legalize gay marriage is that there's a privilege being granted to heterosexuals that isn't given to gays -- the privilege to marry. Now this isn't strictly speaking true. Gay people are given exactly the same right as heterosexuals -- to marry someone of the opposite sex. So there isn't a privilege that I have that a gay man doesn't have. Similarly, all women have the right to marry a man, regardless of their sexual orientation. When framed this way, the issue seems quite obvious. There's no discrimination going on at all.

But not so fast, says the movement to legalize gay marriage. There is one privilege given to heterosexuals that isn't given to homosexuals -- the privilege to marry someone of whatever sex they want to marry. Gay people can't marry people of the sex they want -- their own sex, whereas straight people can marry people of the sex they want -- the opposite sex. But even this way of framing the rights is inaccurate. I don't myself have the right to marry someone of whatever sex I might want. So in that way my rights are the same as those of someone who is gay. We both lack the right to marry whoever we might turn out to want to marry (ignoring our actual desires). The same restrictions in fact apply to both of us, in these terms anyway.

The only way to describe a right that heterosexuals have that gay people don't is as follows. I have the right to marry someone of the sex I happen to have desires for. That seems right. There's a right both I and a gay man have -- to marry someone female. I happen to have desires that lead me in that direction (not that I'm interested in bigamy, but this is an in principle discussion), and he doesn't have those desires. Yet it's still the same set of rights that we each have. Simply describing a right in terms of whether you have the desire to achieve what that right allows doesn't make you any more deserving of that right and doesn't make it an issue of equal rights. If someone comes along and wants to marry a tree, does it mean that this person lacks a right that I have, simply because her or his desire is really unusual? How is it any different with a group that's more common but still not in any sense the norm?

On a simply theoretical level, someone's having a desire for something that he or she has no right to (and neither do I), when my desires are for something I do have a right to (and so does the other person) means that we do in fact have exactly the same rights. We just have different desires. Having desires for something you don't have a right to does not mean you have lesser rights. That's just not how rights work.

This issue is often compared to racial intermarriage, but the analogy doesn't hold up for exactly the reasons I've been outlining. With interracial marriage bans, white people had the right to marry white people, and black people had the right to marry black people. White people didn't have the right to marry black people (and it thus follows that black people didn't have the right to marry white people). This is independent of anyone's desires. Even if I'd had no desire to marry a black woman, I still would have been barred from doing so, and that would have meant that any black man had a right that I lacked, simply because of my race. Black people at one point lacked the right to marry white people, regardless of their desires to do so, and therefore they lacked a right that white people had. This is race discrimination. A right is given to one group (to marry whites) because of race (they're white themselves). This indeed violates the equal protection clause.

Now consider the charge of discrimination according to sexual orientation. The parallel would be if gay people were prevented from marrying straight people (which has happened many, many times and is perfectly legal) while straight people were allowed to do so. That's not what's going on here. There's no single right that a straight person has that a gay person doesn't have. A straight person wants to marry someone of the opposite sex and has that right, while a gay person wants to marry someone of the same sex and lacks that right. The same right that's lacked by the gay person is also lacked by the straight person. The same right the straight person has is also possessed by the gay person. This is no violation of equal protection (not that there's federal equal protection along sexual orientation lines anyway, though the excerpt I quoted above of the California constitution does seem to have something like it among citizens).

This is where I thought USS Clueless was right on the money. There are all sorts of things that we make illegal that some people want to do and others don't. I don't have a right to smoke crack. I don't want to do so. Some people do want to do so. Is it discrimination against a guy who happens to have that desire because I'm allowed to smoke what I want to (which is nothing at all), whereas he isn't allowed to smoke what he wants to (crack)? That's just silly when you think about it. You could say the same about virtually anything that's illegal that some people want to do that others don't want to do. It really is quite parallel structurally.

To leave it at that would really miss one argument the movement to legalize gay marriage has available to them. It's not gays who are denied equal rights. There's a failure to give men and women equal rights. Men have the right to marry women. All men lack the right to marry men. So there's a right women have that men don't have. Similarly, all women lack the right to marry women, while having the right to marry men. So they lack a right that men have. This clearly violates the proposed Equal Rights Amendment that looms its ugly head every few years. If men and women are required to have the same rights as each other, this policy can't stand. It's a good thing for those opposing gay marriage that the ERA isn't law (though I suppose there's some question about whether the fourteenth amendment's so-called equal protection clause will have the same effect). But wait! California's constitution doesn't mention equal rights of men and women, but it does say any right one citizen has can't be denied to another. How can men and women have these different rights, then? It seems California has a legal basis for overturning the initiative that makes it illegal for gay people to marry, but it involves this roundabout line of reasoning. The reason people are saying it needs to be overturned won't work.

There's still a problem with this. California has every reason to remove such language from their constitution, for the same reasons an Equal Rights Amendment is a bad idea at the federal level. It would require forcing Smith College, Wellesley College, and any other all-female schools to admit men. It would require forcing women's soccer and basketball teams to allow men to play on them. You couldn't legally prevent me from going into a women's bathroom (in fact I see no way single-sex bathrooms could continue with any enforcement). Any laws favoring women in terms of child custody or labor in heavy industry would become illegal. There would be no more room for an absolute right currently written into law to decide whether to have an abortion when the father disagrees (though I myself think this would be a good thing, but I'm trying to give reasons an ERA supporter would be likely to agree with). Women would not just be allowed in combat but would be forced to register for the draft and expected to fight in the same way men are. Separate barracks for women would be no more as well. Affirmative action for women in jobs where women are underrepresented would be illegal. All this is implied by current California law.

So I think there is a legal basis for what people are saying. In California, there's a legal means for overturning that voter initiative. However, that legal basis is insane, eliminating legitimate distinctions and forcing women to be, in effect, men, and vice versa. It removes any sense of independent worth of women. That part of their constitution needs to be removed on moral grounds. So there no longer remains a legal basis for this claim that's backed by any real moral consideration.


Ralph Wedgwood has a pair of excellent articles on this topic that I think you might enjoy reading. He argues that the desire to marry (say) that man is essentially the same desire whether it is the desire of a man or a woman. Once you've accepted that point, I think it is pretty clear that the state is unfairly treating homosexual and heterosexual couples differently and then the question becomes what possible rationale would justify this differential treatment.

I think you could certain say that some people's desire to marry is the same desire that a homosexual couple would have to marry each other. I wouldn't think it's even close to the same thing I had in mind when I got married. The Christian concept of marriage is far removed from both the secular understanding of gay marriage and the secular understanding of heterosexual marriage.

I'm not sure how this issue affects what I was saying one way or the other, though. I assume you're familiar with Kaplan's distinction between content and character. If you're going to represent two people's desires for each other as the same, then you'd have to do it in terms of character. My wife doesn't desire herself the same way I desire her, so her desire for me doesn't have the same content as mine for her. They do have the same character, though, which is the structural component of both of our desires for each other. It's like having a blank filled in with someone else in each case. Then the issue would be to see if that character includes the necessity that it be someone of the opposite sex. I think it does in the case of me and my wife.

Even if I'm wrong, though, how does it change my point that someone's having a certain desire doesn't mean it should be required by law? This post was about whether someone has the same rights in the eyes of current law. Your reason for changing the laws seems to be along different lines than rights but more out of fairness (which I don't think anyone can easily argue is something we have a right to). My main point is that this is a change in the laws, something I haven't expressed any serious resistance to. I was merely looking at what the law does in fact require, as far as this post is concerned (and what it should require only on the issue of absolute fairness with men and women when it comes to the ERA). I think I've said enough in other posts to show that I'm not going to resist your conclusion when it comes to a secular society governing itself according to secular principles.

The point was simply that in trying to point to a difference between SSM and interracial marriage, you were describing the rights and desires of the relevant individuals in a what I'd say was a questionable way and that under different descriptions, the two cases seemed to agree perfectly in their relevant details.

Oh, I already agree with that. That was the way I started it out. Under the description of "being able to marry someone of the sex you have a preference for" you can say that there's discrimination against those who have a preference for people of their own sex. Then I argued that it doesn't line up structurally the way racial intermarriage discrimination did, as is often claimed, and the law won't necessarily prohibit laws against same-sex marriage on those grounds.

I guess what you're saying is that you can frame the issue in terms of gay people not being able to act on their desire to marry while straight people can act on their desire to marry. Once you've described their desire neutrally, it turns out to be the same desire in terms of Kaplan's character rather than content, whereas what I said in the post was describing the desires in terms of content rather than character, so it doesn't seem to get the result you say when you do it that way. Is that your suggestion?

I'm not sure how this is supposed to work, because it seems to me that once you move to character instead of content you still don't get a parallel. There's a bare minimum parallel, that someone is allowed to marry the person they have a desire for, whereas someone else isn't, but that's not going to justify calling it wrongful discrimination. If I get the desire to marry my three-year old son, and you make your move to describe it in terms of character and not content, then it's irrelevant both that he's three years old and that he's my son, whereas both should be relevant factors.

I think it's even worse than that, though. The only way to show that there is a problem with discriminating along racial lines is not to abstract away from race, whereas what you want to do is to abstract away from sex. Once you do what you want to do, the same-sex case gets more like the way the race case was the way I described it, but the race case gets more like the way the same-sex case was the way I described it. So it's still not parallel.

Did I misunderstand what you had in mind? I'm not seeing how this is supposed to get spelled out to make them parallel.

to whom it may concern,
I am very straight, i have a boy friend and we have been together for almost a year in a half and we are very happy together. I also say that if same sex love each other then they should be able to be together and get married people that say they should not get married or have the same rights disgust me.
sincerly, BRAT BABY

You have the right to have a negative attitude toward anyone you want, so I'm not going to argue with you. This post isn't about the moral issues, though, so you've really just changed the subject.

The post is about what the U.S. Constitution requires and what some particular state constitutions require. If those documents require wrong things or don't force right things, then they simply don't do that. Whether gay marriage is right or wrong, my argument is that the American Constitution does not require allowing gay people to get married, and as far as I know neither does the Massachusetts Constitution, though the California one seems to but not for the reasons people have been saying.

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