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Friday, February 20, 2004

RIGHTWRIGHTING 

Is the (historical) restriction of marriage to opposite-sex couples a denial of equal rights? Atomizer from Fraters Libertas thinks not:
To all you gay marriage supporters out there who think you are being denied your rights...knock it off. You have equal rights. I, as a straight male, can marry a female. You, as a gay male, can also marry a female. Should you choose not to marry a female, that's fine for you. If you choose to "marry" a male...I'm sorry, but, you can't. And neither can I!!! That sounds quite equal to me.
Convincing? Not really. Questions of equality depend crucially on how one characterizes the rights and classes involved. Atomizer chooses, cleverly, to define the right at issue as the right to marry someone from the opposite gender and the relevant classes as men and women. But one could alternatively define the right at issue as the right to marry the person of one's own choosing and the relevant classes as heterosexuals and homosexuals. Under the former account, no inequality results (as Atomizer notes): the law grants all men and all women, whether heterosexual or homosexual, the right to marry someone from the opposite gender. The latter account, on the other hand, does appear to generate an inequality: the law grants heterosexuals but not homosexuals the right to marry whom they choose (with the trivial exception of "convenience" marriages by homosexuals).

So which account--Atomizer's "opposite gender" conception of the right at issue or the alternative "my choice" conception--is better? As a purely logical matter both are plausible, and neither more so than the other. But as a practical matter surely the "my choice" conception makes more sense. It's at the heart of most current arguments for same-sex marriage, as any reader of Andrew Sullivan can wincingly attest. This means that most people are in fact thinking about the issue in these terms, even if it's not logically necessary to do so. What's more, there's something obtuse about the "opposite gender" conception. Heterosexuals don't care about being denied the right to marry within their gender, but everybody cares about being able to choose their own marriage partners. (Well, almost everybody. Committed bachelors and bachelorettes, hard-core marriage opponents, and marriageable singles in arranged-marriage cultures spring to mind as groups that might put little or no value on the right to make this choice. But certainly their numbers are small.)

Racial segregation is an instructive analogy. (Matt from Free Range Human also floated this, though imprecisely.) The Jim Crow laws technically denied both blacks and whites the right to mixed-race accommodations--the Louisiana statute at issue in Plessy v. Ferguson, for instance, provided that "No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to." Of course only blacks cared, and understandably so, as that was the whole point of Jim Crow. In one of the more notorious passages from Plessy, Justice Brown ignores this reality by adopting an obtuseness mirroring that of Atomizer's "opposite gender" conception:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption.
In other words: To all you racial intergration supporters out there who think you are being denied your rights...knock it off. You have equal rights. I, as a white man, can ride on a car assigned to my race. You, as a black man, can also ride on a car assigned to your race. Should you choose not to ride on a car assigned to your race, that's fine for you. If you choose to ride on a car not assigned to your race...I'm sorry, but, you can't. And neither can I!!! That sounds quite equal to me.

Where does this take us? Not as far you might think. All I've done is argue that the "my choice" conception of the right at issue better captures the actual dispute than Atomizer's "opposite gender" conception does. I've said nothing about how far the law should restrict the right so conceived, nor about who should decide these matters. No right is unlimited, and the right to marry the partner of one's choice is no exception. The law says that I can't marry my sister, or a child, or a hamster; in fact, given that I'm already married, the law says that I can't marry anyone. These limitations on the right to marry are not controversial (yet). Is the prohibition against same-sex marriage enough like these that it should remain in place? Is it so much like these that legalizing same-sex marriage would lead inexorably to the downfall of the other restrictions? And what level of government should decide--state legislatures, Congress, the courts, perhaps even voters directly?

It seems to me that these are the relevant questions. Avoiding them by defining away the problem is clever but not very useful. Nor is appealing to a lexical definition, as Atomizer does at the end of his post. Words are not eternal Platonic forms, and dictionaries are not unchangeable holy writs. Words are defined by use, not by fiat. The primary of meaning of "gay" used to be light-heartedly happy; now it's not. Perhaps the meaning of "marriage" will undergo a similar change.

My own position, in brief, is that while I've yet to be persuaded that same-sex marriage is objectionable as a matter of public policy (this argument by David Frum certainly sucked), I've also yet to be persuaded that the Constitution requires the recognition of same-sex marriage. I've linked to this before, but the most sensible piece I've encountered on this matter is Richard Posner's review of Evan Gerstmann's book Same-Sex Marriage and the Constitution, originally published in The New Republic and available here. Make haste.

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