Sex, Marriage, and Sexuality: 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.

In the wake of same-sex marriage court decisions and legislation, many seek to define 'marriage' in terms that require a marriage to be between one man and one woman. Now I'm not on the bandwagon that says that, just because the term has always meant that, it must still mean that. A lot of people apparently think that's a good argument, but words change their meaning. It's never safe to base your ethical argument on what a term has meant in the past. Nevertheless, some of the responses to this sort of view are also pretty lame. One argument I've seen a handful of times showed up recently in a comment at Pharyngula:

Sure is funny how "God ordered each and all marriages [sic] to be between one man and one woman". Gosh, I guess Solomon missed that one. And others - I'm no bible student, help me out here.

Right, you're no Bible student. A Bible student would know that Solomon was criticized for his marriages within the very same book that sees his marriages as a sign of the prosperity God had blessed him with. So the biblical narrator's attitude toward Solomon's marriages is at least complex.

But you're apparently also no logic student. Think about polygamous marriages. Did Warren Jeffs have a group marriage? Were the women he was married to also married to each other? Or was it just a bunch of marriages, each one consisting of Jeffs and a woman? Did Solomon have all these wives who were married to each other as much as they were married to him? Or was he married to each one of them in a separate marriage? Maybe group marriages have occurred. I have no idea. But that's not polygamy. Polygamy is one man marrying separate women in multiple marriages, with each marriage involving one man-woman pair. Polygamy is no exception to the claim that marriage has always consisted of one man and one woman. It's just an exception to the claim that no one has more than one marriage at once.

Obama on Same-Sex Marriage

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Barack Obama seems to hold all of the following mutually inconsistent propositions about same-sex marriage:

1. We shouldn't deny rights to same-sex couples that opposite-sex marriages have.
2. We should not recognize same-sex relationships as marriage.
3. Attempts to prevent same-sex couples from getting married denies them rights that opposite-sex marriages have.

Unless you equivocate in the meaning of some terms in those statements (and I'm not thinking of a way that he could be), there's no way they can all be consistently held. Yet he does seem to hold all of them. He's said repeatedly that he doesn't support calling same-sex civil unions 'marriage'. Yet every time anyone tries to pass a law preventing a state from using such a term for a same-sex union, he opposes it and says it denies that couple rights that equal treatment requires. He opposes the federal legislation that protects states from having to observe other states' marriages. He opposes California voters' current attempt to overturn the judicial enforcement of same-sex marriage in that state. Is this position consistent?

It's one thing to hold Senator Robert Byrd's view, which is that the government shouldn't recognize same-sex marriage but that such a view shouldn't be encoded into the U.S. Constitution. Perhaps Obama would extend the same reasoning to state constitutions, and thus he could explain his opposition to Proposition 8 in California. But that's not what he said. He said he opposes it because it denies people a basic right, which amounts to #3 above.

Obama is even opposed to an ordinary law (as opposed to a constitutional amendment) preventing the recognition of same-sex marriage in a state that doesn't want to recognize it. Basically, the law means New York doesn't have to recognize Connecticut, California, and Massachusetts same-sex marriages, even though New York currently does. Obama's justification for opposing this law? It violates basic rights. It's #3 again.

Now there's a possible position that opposes not just constitutional amendments on this issue but even laws, while still disapproving of same-sex marriage. Someone could think it's wrong to encode same-sex marriage in the laws but that it's also wrong to encode opposition to it in the laws. That's clearly not Obama's view. His view just seems to be inherently contradictory. This also doesn't seem to be a genuine change in positions, where he's just rethought the issue and changed his mind. He's been opposing these laws and amendments for a long enough time that in the meantime he's also kept saying that he opposes legal recognition of same-sex marriage.

This isn't an issue that I care all that much about, mostly because I don't have much hope that this issue will ever be handled right. I'd prefer the government stay out of calling anything marriage, and that means I agree with very few politicians on either side on the debate. But it's an enormously significant issue of our time, and I'd expect someone running for president at least to have a view that's consistent (or to have a view and consistently follow it), even if it's not exactly the view I would advocate. Obama doesn't seem to be able to articulate a clear and consistent position on the matter and then consistently follow it, and this isn't the first issue I've noticed this about.

It makes me wonder how many other issues there are where I haven't followed the discussion as closely and don't know the wider debate as well as I do this one and abortion, where his ability or willingness to formulate a clear and consistent position is even more lacking. He certainly has similar problems with gun control. For a guy who by all accounts is very smart, it's unlikely that he's as confused as his statements make him sound, which makes me wonder if he's being honest about his views.

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