Obama DOJ and Marriage Discrimination

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I totally missed this. According to Dale Carpenter, the Obama Administration has endorsed all the conservative arguments against same-sex marriage. I wonder if that's a bit of an exaggeration, but it does seem as if one important argument that's roundly derided by most of my philosopher friends is present in the DOJ brief, and it's an argument that I think is exactly right (even if very unpopular among those who favor same-sex marriage).

The DOJ argues that it doesn't violate equal protection on sexual orientation grounds to fail to recognize same-sex marriage, because gay and straight people aren't getting different marriage rights as each other. Gay men are free to marry anyone of the same group that straight men are free to marry -- women. It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation. Men of both orientations (gay and straight) are being treated equally. You might argue that it's unfair because one is able to marry according to their preference and the other isn't, but they are strictly speaking given the same marriage rights, and it isn't discrimination along sexual-orientation lines. There's a much better explanation of what's going on, which I'll get to in a moment. But I wanted to say that I'm glad someone left-of-center is acknowledging this, because it seems obviously true to me and seems completely the wrong way to argue that this is discrimination. (The DOJ apparently doesn't intend to argue that right now about marriage, though. The Obama position is pretty clear that there shouldn't be a federal-level recognition of same-sex marriage but that there should be a federal-level recognition of civil unions with all the civil rights that marriage would convey.)

I've seen all manner of twists of logic to try to resist this conclusion, but I don't know how you could get around it. It's not sexual-orientation discrimination to treat all gay men and straight men equally any more than Prohibition was discrimination against drinkers of alcohol. It simply wasn't. Everyone was prohibited from alcohol, not just drinkers. It certainly affects those who drink in a way that it doesn't affect those who don't, but that doesn't mean that drinkers were being discriminated against, since that would involve being singled out with a law that doesn't apply to others. Being singled out with a law that others don't care about isn't the same thing as being singled out with a law that only would apply to some people. Requiring people to wear motorcycle helmets doesn't affect me because I don't ride a motorcycle, but I'd have to wear a helmet if I were to ride one, so it's not discrimination against motorcycle riders.

Nevertheless, there's a discrimination argument that the DOJ brief doesn't acknowledge. In fact, there are two. I think these arguments are both also very obvious once you consider them, so it surprises me that they don't deal with them at all. Most people on the right on this issue don't accept these arguments, and I think there are things they can say in order to justify such resistance, but the claim in both cases does seem at least initially plausible to me.

One kind of discrimination involved with not allowing same-sex marriage is discrimination against couples on the basis of their being same-sex. The above argument is only about individuals. I don't think this would be discrimination against a gay individual, but you could much more easily argue that a couple who is same-sex is being discriminated against on the basis of their sexual orientation. Technically speaking, that's not right either. Two straight men could, in principle, decide to go against their sexual orientation and seek civil marriage. The discrimination here isn't really according to sexual orientation, then, but according to same-sex pairings vs. opposite-sex pairings. Treating a same-sex couple and an opposite-sex couple differently is discriminating against the couple who is being denied a privilege or right that the other couple is given.

(This gets immensely complicated in terms of the logic of it once you accept intersexual, transgender, or transsexual members of pairings, so I'm ignoring that for the sake of this argument. I don't think it affects what I'm trying to argue in any significant way, so I think for simplicity's sake it's not problematic to do so.)

The other argument is still about individuals but is not about sexual orientation at all. Denying a man the right to marry another man is discrimination if women are allowed that right. The same is true of denying a woman the right to marry another woman when a man can do so. But this isn't sexual-orientation discrimination. It's sex-discrimination. Men are given certain rights or privileges not given to women, and women have rights or privileges men don't have. This argument seems to me that it should be utterly obvious once it's made clear.

How, then, does the first argument (the one the Obama DOJ presents) get so much traction in certain circles while the second and third get ignored? Perhaps they just haven't thought of the second and third. But there may actually be responses to them. Conservatives on this issue might resist the second and third argument, but they have to argue for a few things to do so. I think the easiest way out of the second argument is to argue that couples have no rights as couples (at least none that matter for this issue). Then discrimination against a couple is perfectly all right as long as it doesn't rely on any discrimination against those same individuals. This is at least a plausible view given that the Constitution never embraces rights of pairings of people but only speaks of rights of the people as a whole and rights of individuals.

That still would leave the third argument, though. Can sex-based discrimination of this sort be morally justified? The Constitution does not guarantee protection against all sex-based discrimination. The movement for an Equal Rights Amendment stems from a desire to remedy that, but such an Amendment has failed every time someone has tried to get it through (partly because not many people want to remove the possibility of women's sports teams at state institutions or men's and women's bathrooms in public buildings, which would violate the letter of the law if such an amendment passed, given the Supreme Court's interpretation of the 14th Amendment to remove racial segregation). So those who want to justify state refusal to recognize same-sex marriage while recognizing opposite-sex marriage need to try to argue that this kind of sex-based discrimination doesn't violate whatever equal protection rights we have against sex discrimination.

I have no idea if that can be done. Maybe it would be easy. Maybe it would be immensely difficult. I don't actually care, because I don't think the government should recognize opposite-sex marriage to begin with, so I don't see why they should also recognize same-sex marriage, and my own preference would involve no discrimination in any of these ways. But I wanted to try to clarify what might need to be said for the conservative position that the Obama Administration seems to be advocating to work. I don't know of those who hold such a position actually making such arguments. I don't think either side on this issue has really gotten to the bottom of the discrimination issues. Those on the right seem to me to ignore arguments two and three just as those on the left get my first point wrong. I was happy to see the Obama DOJ admitting the first point despite (I'm sure) most people in the Obama DOJ very much favoring same-sex marriage as a policy matter.

So while I have to give the Obama DOJ credit for taking a stance here that's both out-of-character and (at least on that one point) certainly true, I nevertheless don't think they've quite got the issue nailed down properly. There is also something strange about this brief (and Obama's continued opposition to same-sex marriage) when juxtaposed with Obama's clear statement that DOMA and Prop 8 are discriminatory. I haven't figured out a way to put all of his statements together consistently, and it's not as if I haven't tried.


I find the argument you critically discuss in your post very interesting; and I think the argument is valid as far as it goes. However, I’m inclined to think it does not go very far. The definition of “discrimination” that features in the DOJ brief is a technical one, and fails to capture the full complexity of the quotidian or pre-reflective notion. For example, according to the same argument, a prohibition against interracial marriage is not discriminatory since it applies equally to members of all races. However, there is a pre-reflective usage of the word “discrimination” according to which a prohibition of interracial marriage would be considered discriminatory. I would hasten to add that the pre-reflective usage is far from precise, and precision may even demand that we (as philosophers) use some other word to capture what is wrong about prohibiting interracial marriage. But as far as the cogency of the DOJ brief is concerned, whether the word “discrimination” ought to be used or not is beside the point. The argument that the DOJ employs proves too much, for it may also be used to justify laws (such as a law prohibiting interracial marriage) that we as a society have decided we want no part with. In short, it is (for grounds independent of the question of discrimination) an argument which we, as a society, may simply not wish to buy into.

Additionally, there seems to be an important difference between the case of gay marriage and prohibition. Being a drinker is, in the paradigm case, a lifestyle choice. However, according to most defenders of gay marriage, the same is not true of being gay. Perhaps there may be exceptional cases in which someone chooses to be heterosexual (i.e., attracted to members of the opposite sex) or homosexual (i.e., attracted to members of the same sex), but paradigmatically this is not the case. Moreover, one’s sexual orientation seems to be a much more fundamental part of who one is as a human being than being a drinker (or even an alcoholic) could ever be. This is why I think many defenders of gay marriage see its prohibition as discriminatory (in the pre-reflective sense). It has to do with laws that significantly impact someone’s quality of life simply because they were born a certain way or happen to be a certain way due to factors outside of their control. By contrast, we seem to have much less qualms about laws that impact someone’s quality of life when some choice on their part is involved. Similar considerations seem to be at play in the case of racial or sexual discrimination, which also (paradigmatically) represent cases in which choice is precluded. In short, I submit that the word discrimination (in the pre-theoretical sense) may have something to do with the absence of choice with respect to certain fundamental features of who we are as individuals. Laws which disproportionately affect individuals due to factors outside their control seem to run afoul to our widely shared notions of fairness. If this is right, then the pre-theoretical notion of discrimination is much broader (and perhaps sloppier) than the DOJ definition suggests, and the latter fails to capture all the morally salient considerations.

No, a ban on interracial marriage fails my test. It counts as racial discrimination, because it prevents black men from doing what white men can do, and it prevents white men from doing what black men can do (and so on for women, for the next racial combination, and so on).

I would also insist that whether there are good policy reasons to prohibit something because we want to consider it discriminatory is not necessarily the same question as whether there are good legal arguments for the conclusion that the law or the Constitution already treats the action as illegally or unconstitutionally discriminatory. The DOJ argument isn't mean to justify any law on policy grounds. It's meant to argue that there's no current constitutional or statutory problem with such laws. That position is consistent with opposing the passing of such a law. (See Justice Thomas' dissent in Lawrence v. Texas for a nice brief example of this. He thought the law in question was stupid, but he didn't think it was unconstitutional to pass it. I think the DOJ brief is only concerned with the latter kind of issue, so policy arguments should be irrelevant.)

Being gay may not be a lifestyle choice, but being married or being in a sexual relationship certainly is. It was for me, and it is for pretty much everyone who isn't coerced into it. Plenty of people choose a life of celibacy. Lots of people don't end up in sexual relationships not by choice but because they can't land anyone But only the coerced end up in sexual encounters without making a choice.

You can't do it just in terms of disproportionate effect. There are times when something perfectly innocent produces a disproportionate effect in ways that it would seem immoral to try to eliminate. For instance, preferring people you know in hiring will produce a disproportionate racial effect if one race happens to have more people making hiring decisions and people are socially more likely to know people of their own race. No one thinks that justifies making it illegal to hire someone you know. There might be cases where it's best to compensate for such disproportionate effects with other actions to counterbalance the effect, but it's hard to see how it could be good to make it illegal to participate in anything that has a disproportionate racial effect. Just about everything will turn out to have a disproportionate racial effect, just because that's how the numbers are likely to turn up. Nothing happens in exact proportions to the representation of racial groups in society. The only way around it is quotas, which the Supreme Court has rightly declared unconstitutional.

It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation.

True, but it is something of an arbitrary standard of non-discrimination. Just as the left's standard (roughly: being able to marry any adult who consents*) is also somewhat arbitrary.

The standard of non-discrimination you give above sounds akin to the USSR's non-disrciminatory voting laws: everyone, communist or not, is prohibited from voting for anyone who is not on the communist ticket. Or alternately, ancient Israel's worship laws were also non-discriminatory: everyone, Israelite or not, was prohibited from worshipping any god but the LORD.

Correct or not, those versions of non-discrimination seem distinctly non-American when compared to our freedoms in regard to voting and worshipping. So I think a reasonable argument could be made that the non-discriminatory "everyone is prohibited from marrying someone of the opposite sex" is less "American" than the non-disriminatory-by-a-different-arbitrary-standard "everyone is free to marry any adult who consents*". It seems more consistent with America's libertarian bent to go with the latter version of non-discrimination than the former.

*exceptions: incest and polygamy. (Why? as I said...it's arbitrary.)

Well, I did give three different standards of non-discrimination, and according to two of them this does count as discrimination.

The USSR policy was discriminatory against parties other than the communist party and candidates who aren't in the communist party. Israel's worship laws were certainly exclusive, but they aren't discriminatory. It's the criminal penalty for those who worshiped other gods that was discriminatory. But by that account, any law is discriminatory. Murder laws discriminate against murderers, and larceny laws discriminate against thieves. With a very generous standard of what counts as discrimination like that, it's very easy to find any policy discriminatory, but it doesn't remotely settle whether it's wrongful discrimination. For that you need to argue that it's immorally unfair to treat people differently according to that characteristic, behavior, or whatever. (Being unfair isn't enough, because it's not fair that people hire those they know over those they don't, but hardly anyone thinks that's immorally unfair.)

I'm sympathetic enough to your final argument enough that I have no problem at all with civil unions, but I do think it's important to keep the government from declaring what counts as a marriage, primarily because we do have freedom of religious expression, and a lot of people's religious expression differs on what counts as a marriage. (It also has Establishment Clause problems on the more liberal view of the Establishment Clause that I know you endorse, but I happen to think the Establishment Clause says much less than that, basically just preventing a U.S. government church like the Church of England.)

You're right that incest and polygamy are arbitrarily included. If the only legitimate grounds for prohibiting sexual activity are harm and consent issues, then there should be no prohibition of incest or polygamy unless you can argue harm or violations of consent, but it's very hard to argue that incest and polygamy are harmful or consent-undermining without bringing in a bunch of stronger claims about the nature of sex that are controversial (but I think true), and once you bring those in it seems hard to prevent laws against other things by similar justifications.

Re: objection #2, On what other issue do "couples" have a right? We don't deal in couples, just individuals. A couple is a pair of individuals.

Re: #3, This is cleared up by better stating #1: Everyone has the right to marry one willing member of the opposite sex who is of legal age and not a close relative. (Does that cover all the bases?)

As for Obama defending DOMA, the executive branch is obliged to defend existing law. I doubt they'll really put their heart and soul into it, though.

You might need a requirement that the other person not be already married, or you ought to make it explicit that this can be only one person at a time.

The Solicitor General has to present what arguments they think are good to defend existing law, but they don't have to present an argument that they think is egregious. In fact, ethics codes in most bar associations prohibit that. They have good faith requirements. This particular argument is regularly derided by lots of people I know as silly sleight-of-hand (look at Carpenter's opinion of it in the Volokh Conspiracy post I linked to). The DOJ didn't have to use it. That they did suggests to me that they're putting more into this than I would have expected.

Thanks for the clarification; my comment about the prohibition of interracial marriage was clearly off.

Very illuminating post!

You're not the first to conclude that from this argument, though.

The USSR's policy discriminated against non-communist parties/candidates, and Israel's laws discriminated against other gods, but neither was in any way discriminatory against the voters/worshippers. Whether that discrimination is immoral/unjustified is not the point--I think one was and the other not and you can probably guess which is which--that neither seems appropriate in the American context is.

The prohibition of gay marriage is similar to the above examples in that the object (party/god/person-you-are-marrying) is discriminated, but not the subject (the laws uniformly apply to everyone).

I'm sympathetic enough to your final argument enough that I have no problem at all with civil unions, but I do think it's important to keep the government from declaring what counts as a marriage, primarily because we do have freedom of religious expression, and a lot of people's religious expression differs on what counts as a marriage.

This is my position too. Ideally, each religious organization would decide what counts as a marriage to them, and the government would do something analagous but not identical (call it "civil unions" for the sake of this discussion) for the purposes of legal matters, census, etc. If I understand correctly, some places in Europe do this and it seems to work just fine.

Sadly, this doesn't look feasible in the forseeable future for the US, so in my opinion of the options that do look feasible, making gay marriage legal seems to get closest to the ideal result while feeling American (in the 1st Amendment, libertarian way).

Y’all are making this way harder than it has to be

Marriage is supposed to be about spending your life with the person you choose to spend it with.
Straight people are permitted to marry consenting people of their preference; gay people are not.
Ceteris paribus, a straight person’s preference entitles her to marry the one she prefers; a gay person’s preference does not entitle her to do the same.
In the eyes of the state, straight preferences "count"; gay ones don't.
So: Gay people are being discriminated against on the basis of their preferences.

That's a pretty common response, but I don't think it holds any water legally. If I want to smoke pot, but you want to smoke cigarettes, I can claim that I'm being discriminated against because I happen to prefer smoking something that's legislated against and you don't. But that kind of argument would never get any traction in any decent court. Equal protection doesn't require giving everyone whatever they might want. It just requires that people are treated equally, i.e. they have the same options as each other. If they happen to want different things, that's not the fault of the law.

Even if you want to contend that you can't help what you want on certain matters, I don't see how that's relevant either. I can't help what food I happen to like, but certain things aren't legal to sell as food, e.g. brownies baked with marijuana in them. There's no equal protection violation because some people prefer brownies with pot and others prefer brownies without it.

The government hasn't recognized a basic right to smoke what you want, and then refused to extend that right to people who want to smoke certain things. By contrast, in Loving v. Virginia the Supreme Court avows that "the freedom to marry, or not to marry, a person of another race RESIDES WITH THE INDIVIDUAL and cannot be infringed by the state." (emphasis mine.) I submit that the principle it's appealing to here is something like what I called above the freedom to "spend your life with the person you choose to spend it with," a freedom which (as the Loving decision states) should not be restricted on "invidious" grounds. And the ban on gay marriage seems-- in the absence of some story about what's so bad about gay marriage, at least-- to deprive gay people of a right afforded to others on grounds that are, precisely, invidious.

The state believes (erroneously, by my lights-- but anyway...) that pot (both smokeable and baked) is bad enough for individuals and for society as a whole that there's a legitimate and compelling public interest in restricting its sale and use. If you want to sustain the analogy you've offered against my restatement of argument 1, you ought to explain: on what reasonable grounds could the state maintain that there's a similarly important and legitimate public interest in prohibiting gay marriage-- especially in light of its own recognition that individual freedom is of paramount concern in determining who may marry whom?

I think I agree with Norm Jones: the state recognizes and protects your right to marry the person you want to marry (with their consent), UNLESS YOU'RE GAY. Prima facie, that's discrimination on the basis of sexual preference.

And Jeremy Pierce's response to Jones is unavailing: the government takes itself to have an overriding public interest rationale for curtailing our liberty to smoke weed, but what is the public interest rationale for curtailing gay people's liberty to marry their preferred partners? Without such a rationale, the government appears to be quite arbitrarily refusing to extend a recognized and established right to a historically disrespected minority: textbook discrimination.

Here are two ways to read the right captured in Loving vs. Virginia as "the freedom to marry, or not to marry, a person of another race".

1. It's merely a prohibition on restricting marriage based on the difference between races of the two parties.
2. It's a much more expansive freedom to marry anyone else you want.

You're choosing to interpret it in the second way. But citing Supreme Court precedent means we're going to go with Supreme Court precedent rather than the constitutional arguments I was trying to focus on. If we do that, the case against same-sex marriage is a lot easier, because we'd have to include Lawrence v. Texas and not just Loving v. Virginia. In the former, the Court declared that the latter does not entail a right to same-sex marriage. So the official case law on how to read Loving is that it doesn't go as far as 2 (whether it's limited to 1 or there's some intermediate is inconsequential at this point).

Public interest arguments are required for prohibiting some behavior. They are also required for equal protection cases when a privilege is given to one party by denied to another in a way that seems prima facie arbitrary (hence the need for a public interest argument to show that it's not arbitrary). They aren't required when there's no equal protection issue. Based on the logic of it, there's no equal protection issue in the case of the first argument I discussed. Given the statement of an individual (but not a couple's) freedom to marry in Loving, I don't think the second argument does it either unless we can find rights for couples somewhere else. So we'd have to do it by the third way, and we'd have to rely on the extent to which this is sex-discrimination. That's in fact how I've recommended those pursuing same-sex marriage through the courts should do it. States that require equal protection along sex lines should therefore recognize same-sex marriage if they (as states rather than just as required by the federal government) have a state recognition of marriage. I'm told this is true of some states, including California, but no one is bothering to make this case in any of them, as far as I can tell. But my policy preference is to remove state recognition of marriage and call the civil unions something else, then to give the same rights and privileges to all. So I'm not sure I'd need to provide a public interest argument to defend my own view. The only kind of discrimination I'd allow is that religious institutions can call whatever they want marriage for their own purposes, and you don't need public interest arguments for that. The free exercise clause of the 1st Amendment guarantees that.

But public interest arguments have been offered. It's not as if no one has ever given any. A case can be made that marriage that's at least prima facie capable of producing offspring naturally should be accorded a status higher than other unions, even if we won't discriminate in adoption cases against same-sex unions or against couples without offspring or without natural offspring. Even infertile heterosexual unions are prima facie capable of producing offspring naturally, and no one's going to argue that we should test for infertility to accord the descriptor 'marriage' to a union. The idea isn't that marriage is worthless without natural offspring but that recognizing the ideal for children to be raised by natural parent, other things being equal (and very often they're not) is worth favoring opposite-sex unions.

Another claim people defending the status quo of most states is that favoring opposite-sex unions with the name 'marriage' shows support for the more ideal opposite-sex pairing in terms of raising children. Single parents and same-sex pairs can certainly raise children well, but there are studies that seem to show that having close parental role models of both sexes can provide a more psychologically-healthy environment than having one parent or two same-sex parents. Recognition of opposite-sex marriage but not same-sex marriage would have the purpose of giving greater legitimacy to a structure that has healthier results, even if we don't restrict the rights of those in other structures to raise children. That seems like a public interest argument.

Another public interest argument that's often given has to do with maintaining tradition. It's stupid to maintain tradition just because it's always been done that way, especially if you do have an equal protection argument against doing so. But this is a tradition that's woven into the fabric of society in a lot of ways, and it depends in part on religious convictions that run deeply in a lot of traditions (not just Christianity but Judaism, Islam, Buddhism, and Hinduism, not to mention a lot of smaller religions; I know of almost no religions that have historically gone the other way, in fact). I'm not advocating the government taking a stance on those religious questions, but the fact that such a wide variety and large percentage of people have historically held the view should count for something, and revising our conception of marriage so significantly impairs religious practice that we'll need to create all manner of exceptions if we want to recognize the First Amendment's free exercise clause properly. That's a serious concern. As I've said, I think a better solution is to remove government language about marriage entirely. But for those who aren't advocating that, I do see a worry about free exercise if the government is going to expect religions to treat same-sex unions as marriages. I would count that as religious persecution, which the Constitution prohibits. Not violating the Constitution seems to me to be a legitimate public interest.

I'm not endorsing every aspect of these arguments, partly because there's a fundamental premise that they assume that I won't grant (that the government should be recognizing marriage to begin with) and partly because I know there are ways many do question them. I'm presenting them here because I do think people who hold the view you resist have offered public interest arguments, and I don't think those arguments are quite as bad as they're often taken to be. Often it's treated as if there's no argument at all, and often the arguments are presented in ways that seem less fair to what people who hold such views meant by offering them as arguments. As I've said, I don't think arguments of this sort justify denying same-sex couples the kinds of privileges that civil union advocates are insisting on providing for them. But I do think that those who think the government to recognize marriage have a better argument for public interest than is often recognized by advocates of same-sex marriage.

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