Race: November 2008 Archives

One justification for disallowing bans on same-sex marriage is that it's seen as discrimination to prevent same-sex couples from marrying. [In this post I'm not considering under what circumstances discrimination is wrong and when it's perfectly ok. The moral issue isn't my interest here. I'm just looking at whether it's discrimination, leaving aside the moral issue of whether such discrimination is ok. It's ok to discriminate against black people when casting a part in a play for a character that was written as a white racist. But it's still discrimination, just a perfectly legitimate kind. I'm interested in the legal implications here, not the moral ones.]

Whether a practice or act counts as discrimination depends on some assumptions. Two key issues are (a) who is being discriminated against and (b) on what basis.

Consider Loving v. Virginia, the Supreme Court case that overturned bans on interracial marriage. The Supreme Court ruled that the Equal Protection clause of the 14th Amendment prevents states from treating individuals of different races differently when it comes to who they can marry. If a man is black, he couldn't marry a white woman in Virginia, but if he'd been white then he could have. That's discrimination against individuals along race lines.

Restricting marriage to same-sex couples isn't quite parallel. It doesn't discriminate against individuals according to sexual orientation. A gay man has the same rights as a straight man. He can marry an unmarried woman who is of age or who otherwise satisfies the requirements for marriage (parental consent or whatever). Both can marry women, and neither can marry men. Similarly, a lesbian has the same rights as a heterosexual woman. Both can marry men, and neither can marry women. That's not discrimination according to sexual orientation, since people of both sexual orientations (holding sex constant) have exactly the same restrictions. The law is equally applied to gays and straights.

But it is discrimination against couples. Same-sex couples are not allowed something that opposite-sex couples are allowed. Does a couple have the kind of legal status to serve as a party in this kind of legal question? My suspicion is that it would be a major innovation in our legal system to treat a couple as a legal entity. I'm not sure that's the best strategy for same-sex couples to try if they want to make headway on this issue, but it is the easiest way to end up with a discrimination claim on the basis of sexual orientation.

I've long thought that the most promising case that bans on same-sex marriage are discrimination is to ignore sexual orientation entirely and to focus on a different basis of discrimination. Men are being discriminated against on the basis of their sex by not being allowed to marry people women are allowed to marry, and women are being discriminated against on the basis of their sex by not being allowed to marry people men can marry. If you ignore sexual orientation, as many social conservatives want to do, then this complaint gets a footing. Of course you have to think any discrimination on the basis of sex is wrong or explain why this particular one is if others aren't, which puts you back to square one if you want to draw a negative moral conclusion, but I'm ignoring that in this post.

Sore Winners

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It's one thing to invent all manner of conspiracy theories about how you lost an election (see 2000 and 2004). Thankfully, the Republicans don't seem to be doing anything on the same order as that in 2008. Pretty much the only questions being raised by mainstream Republicans involve an organization that's actually under investigation by the FBI on the issue in question, and hardly anyone is claiming that the election was stolen or that McCain would have won easily if not for illegal vote-stealing of some sort.

I think part of that might have been that McCain was doing so well in the polls until the financial meltdown, and then Obama clearly had that crisis to thank for his win and for McCain's inability to get back in the game. If it had been closer, maybe things would be different, and there might be more charges that voter fraud actually affected the outcome. Nevertheless, I think it's noteworthy that Republicans largely aren't pushing it to that point, and I'm glad for that. I can't honestly say that I'm sure Democrats would do the same thing were the tables reversed, and we have history to support my doubts on that.

What amazes me, though, is all the sore winners in the 2008 election. It isn't enough just for a Democrat to take the popular vote for the first time since Jimmy Carter and to win the electoral college handily [clarification: I meant winning a majority, not simply a plurality; Clinton obviously won a plurality twice]. People have to complain about the states that did go for McCain, claiming that all the white Southerners who voted for McCain were doing so merely because of racism rather than because they think Obama's policies would be awful. See Sam's post on that. Today we heard some caller on NPR's Talk of the Nation talking about how she's glad she doesn't have to listen to Palin's voice anymore, and I thought it was perhaps some preference against the pitch of her voice, but it turned out she really meant her regional accent. She was talking as if someone is ignorant for dropping the 'g' in words ending in '-ing' and several other colloquialisms.

After hearing this woman's snotty bigotry against the kind of accent you can hear not just in Alaska but across the Midwest, Sam wondered out loud why people like that caller think it's a good idea to alienate such a large swathe of voters. People did it with Bush, but he'd won, and they needed some outlet to express their frustration. So they tried to feel better than him by pretending his accent was equivalent with being an ignorant dolt. I'm not sure what people think they're accomplishing by complaining about those on the losing side, though, with these exaggerations of racism in all anti-Obama voters and by making fun of a quite common accent in a large stretch of this country. It certainly does feel like sore winning. What's the motivation for that?

Update: I was originally planning to link to this in the post, but I reworked it enough times that I forgot to put it in the final version somewhere. I did want to give Senator McCain credit for what is absolutely and indisputably the best and most honorable concession speech I have ever heard from a political candidate. He knows how to lose gracefully and respectfully.


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