Same-Sex Marriage and Discrimination
Philosophical confusion seems to cloud all discussions about same-sex marriage to a degree unusual even by the already very cloudy standards of mass democracies. This isn’t a feature of all culture-war issues in general. The broad, publicly understood reasoning behind pro-choice and pro-life arguments is coherent in both cases. Restricting abortion really does result in a significant diminishment of women’s autonomy, and allowing abortion really does result in the death of members of the human species. The arguments about same-sex marriage are different, and unusually confusing. Since I am frequently confused by the arguments myself, as a personal project I’m going to try to work through some of the contours of the debate. I’ll start with links to two pieces I’ve written elsewhere.
The first is a post from my old blog about why same-sex marriage opponents, with a few exceptions, don’t seem to have any arguments. Read the whole thing if you’re interested, but here’s the conclusion:
The inability to articulate any reasons why same-sex marriage should not be institutionalized is due to the inability of our political system to understand cultural institutions. We are capable of arguing about whether our government should treat everyone with merely formal or fully substantial equality — this is what arguments about affirmative action are about — but we are not capable of arguing about institutions that are simply ours — ours to destroy, modify or preserve, because they are part of our culture, and belong to us.
The second is a recent article in Public Discourse, in which I argue that current marriage law is not discriminatory in the formal sense of singling out and excluding a group from broadly enjoyed rights for the simple reason that current marriage law makes no reference to the existence of heterosexuality or homosexuality at all. Current marriage law certainly does discriminate against certain types of relationships, among them long and affectionate relationships between members of the same sex, but it would not cease to do so were those relationships recognized as marriages, because singling out some relationships for special recognition is what marriage does by definition. This is an extremely minimal claim–certainly it does not rule out the possibility that not recognizing such relationships as marriages is unfair in other ways–but since many proponents of same-sex marriage claim that without such recognition the law actually violates the 14th amendment, it seems a worthwhile point to make.
I hope the article is worth reading in full, but here’s the conclusion, in which I contrast current marriage law with anti-miscegenation statutes:
…opponents of the legal recognition of same-sex unions sometimes note that homosexual persons are already free to marry, so long as they marry someone of the opposite sex. It is understandable that this point strikes many as a bit glib, and no doubt it is sometimes meant to be. It underscores, however, the essential disanology between anti-miscegenation laws and current marriage law: proponents of same-sex marriage do not propose to extend an existing liberty to a broader class of people, but rather to change the nature of an existing legal institution to which all people, qua people, already have access.
By contrast, exclusion of a certain class of people is the whole point of laws banning interracial marriage. Anti-miscegenation laws relied extensively on the concept of race. In fact, the first clauses of the statute overturned by Loving v. Virginia were concerned primarily with establishing on a legal basis the categorization of citizens by race. Whether or not you believed in the category of race, and whether or not the category of race was meaningless or not, the statute either included or excluded you.
Current marriage law excludes no one in this way. Current law recognizes a certain kind of relationship and denies no one access to this recognition. Those who advocate changing it to recognize same-sex unions are not proposing a formal change in the law that will leave the institution unaltered even as it grants more people access to it. Rather, they seek a substantive change to the institution based on a new understanding of human sexuality. It is a mistake, and an important one, to believe that current marriage law is comparable to anti-miscegenation laws, and to advocate for the legal recognition of same-sex unions as marriages on the grounds that to do otherwise would be discriminatory.
I’d be interested to hear the opinion of the gentlemen and commentariat about both arguments.