April 15, 2004

Gay Marriage and "Equality"

by Nick Morgan

The only plausible arguments left against gay marriage are those conceding that denial of marriage to gays is indeed discrimination, but it's discrimination that is justified for whatever reason (slippery slope, damage to the family, tradition, etc.). Arguments that attempt to cast the denial of marriage to gays as some kind of equal treatment are works of hollow casuistry and cannot be squared with Loving v. Virginia. Here's an example of such an argument, from Shelby Steele at TNR:

    Because marriage is defined as a heterosexual institution, its exclusion of gay unions doesn't really qualify as a denial of rights. Gays have the same right to marry as heterosexuals as long as they marry the opposite gender [emphasis mine]

This stripe of argument is often spelled out like this: blocking gay marriage is not gender discrimination because both men and women are given the same options, namely, marry the opposite sex or marry no one. Hence, the treatment is equal. (Some would even argue that there is no sexual-orientation discrimination because gays and straights have the same right to marry the oppsosite sex.) Let me formalize the argument:

    The law treats sex A and sex B equally because both have the same right to marry persons of the opposite sex.

Sounds facially plausible. But notice how that kind of argument would conclude that anti-miscegenation laws also provide equal treatment:

    The law treats race A and race B equally because both have the same right to marry persons of the same race.

The only difference between the argument above (against gay marriage) and this one (against inter-racial marriage) is that "sex" is replaced by "race," and "opposite" is replaced by "same." If one really thinks that blocking gay marriage does not discriminate on the basis of sex, then one must also conclude that blocking inter-racial marriage does not discriminate on the basis of race. I suppose staunch advocates might say "fine, anti-miscegenation laws provide equal treatment too." But that's a normatively worthless meaning of "equal" and it's not the equal treatment of the 14th Amendment.

April 15, 2004 06:30 PM | TrackBack
Comments

Ahem. Isn't that a rather broad reading of Loving v. Virginia, however? Sex isn't granted the same degree of scrutiny under the 14th Amendment. (At least, I hope it isn't, or I'm looking more doomed for the Con Law exam than I expect to be.)

Of course, this is why my Con Law class is gradually making me a legal realist: assume arguendo that you're right, there's not a strictly logical distinction between your two cases. Constitutional law still doesn't work so strictly, or at least it doesn't seem to me to do so now. It's a matter of fine, bordering on implausible, differences. I can't make a plausible distinction between Roberts v. Jaycees and the Boy Scouts cases, either, and can't figure out how the Masons would fall under either of them.

On the other hand, Loving occurred after almost all states had gotten rid of their miscegenation laws anyway. To the extent that the court acted, it acted with the swell of popular national legislative opinion. I'd say that the reading of the 14th Amendment in Loving is logically flawed--at least to the extent that no one wants to carry it to its logical conclusion, which could easily be gay marriage as well as other things. After all, I've yet to see a decent reason why, under such broad reading of 'equal protection,' we can't go straight to polygamy. But no one really cares because you couldn't have gotten the miscegenation laws re-passed by the time they decided Loving anyway: the argument was lost. We're not at that point with gay marriage.

Of course, I could be wrong in my Con Law, but sex generally doesn't seem to get the protection that race does under the 14th Amendment, which is the easiest distinction to make. The more realistic one, however, is that Loving wasn't principled--if it had been, then we'd have to have had gay marriage 25 years ago--but was merely judicial overreach that we no longer object to. As such, I'm not sure I'm willing to give it much value as a logical predicate as opposed to legal precedent.

Or maybe I'm just getting cynical as exams approach...

Posted by: A. Rickey at April 15, 2004 07:39 PM

Also, can't you phrase your two statements as:

The law states that the race of two individuals cannot be part of the definition of marriage.

and

The law states that the sex of both individuals may be part of the definition of marriage.

In which case some easy distinction between the two can be made. Even within our predominantly Western culture, miscegenation was not, at the time of Loving so universally condemned as to make it definitionally part of the institution. Nonetheless, homosexual marriage is particularly novel, an arrangement particularly rare--if not unprecedented--in human experience, and a much harder argument to make definitional.

Again, there has to be a solid line drawn between 'why gay marriage' and 'why not polygamy'--unless one wishes to advocate both--that goes beyond convenience. Otherwise you start getting into the historically indefensible. And Loving is no help here: it is impossible to argue that with only 15 states forbidding miscegenation--and that only for whites--that the Supreme Court was redefining what the word 'marriage' meant. With homosexual marriage recognized in one state, at best, and that controversial and judge-imposed, I don't see how you can deny that the statements are 'distinct' unless and until you take the 'man and woman' out of the very definition of the word.

Posted by: A. Rickey at April 15, 2004 08:25 PM

Think you're cynical now, just wait 'till you take Federal Courts (which you definitely, definitely should do).

I'm using Loving v. Virginia not for it's value as a legal precedent that could be used in court, but for the proposition that anti-miscegenation laws are racially discriminatory. Don't you think so? Isn't it the merest casuistry to say otherwise?

And your argument that sex doesn't get the same scrutiny as race misses my point. Degree of scrutiny tells us how weighty the justification for discriminating must be in order for a law to pass muster (need better justification for race than sex discrimination). You only get to the weightiness of state justification once you decide there is discrimination. If you read the first paragraph of my post, you'll notice that I was addressing not the justifications, but the arguments that blocking gay marriage isn't even discrimination in the first place.

And did you just say Loving was judicial overreach? Only Jim Crow laws could fall more squarely under the 14th Amendment than anti-miscegenation laws! What's your Article III argument for the overreach? Recall that Scalia's textualism-originalism (and I doubt it would even work against Loving) is not written into Article III.

Your reasons for saying that Loving isn't principled, or is logically flawed, are that it would imply a result that you don't want (gay marriage). I doubt you thought that would persuade me, but furthermore, it's completely unclear why implying this result has anything to do with principle or logic. The state drew a distinction based on race without a good justification. Plainly unconstitutional. Not much more to say about Loving.

Posted by: Nick Morgan at April 15, 2004 08:25 PM

I just read your second comment. Polygamy is also discrimination--based on number. That much is obvious. But discrimination based on number is different than discrimination based on sex (I don't dispute that--again, my post establishes the sex discrimination without getting into justifications). Talk of justifying discrimination is rather different than establishing the discriminationn in the first place. My whole point was that reasonable arguments against gay marriage need to concede that there is unequal treatment, and then proceed to why that unequal treatment is justified.

Posted by: Nick Morgan at April 15, 2004 08:35 PM

Well (having re-read Loving today), it's that you have to read something into 'equal protection of the laws' to get to its solution of 'discrimination.' After all, it's not a necessary reading of 'equal protection,' and I'm not sure that the text was meant that way.

Yes, as you say, Scalia's 'textualism-originalism' isn't written into Article III (though I think it would be better if it were), but that cuts both ways. All it means is that so long as there aren't five Scalias on the court, you're right, and as soon as there are, I am. You can tell why I'm a bit disillusioned by this process. ;)

Posted by: A. Rickey at April 15, 2004 08:36 PM

Well, yes, it's unequal treatment, but that's not saying more than any legal definition will treat unequally, because it makes a dividing line? After all, if we're going to start complaining about discrimination based upon the distinctions that marriage makes, we can run that 'number' distinction to non-existence: if we can't discriminate against 3, why discriminate against 1? If 'marriage' can be discrimination against sex because it's defined as MF, then certainly it's discrimination against single people as well?

I guess I'm figuring that if what you want is an admission that the law treats homosexuals differently from heterosexuals, then it's an easy admission to make, but it doesn't get us very far. No one on the other side was saying that the present definition of marriage doesn't make a distinction between men and women, but simply that it's a definitional distinction of the term. Assuming I allow you that--where has it moved the debate?

Posted by: A. Rickey at April 15, 2004 08:47 PM

Good question. I'm arguing more than a mere "gays are treated unequally," I'm arguing that they are treated unequally on the basis of sex. But pundits like Steele (and, I would assume, you, based on your previous comments and writings) continually claim that gays are given equal marriage rights. If everyone really conceded my point, they wouldn't merely say "yeah, gays are treated differently because they don't fall into our definition of marriage" they would rather say "gays are treated unequally by our discriminatory definition of marriage." The only definition of marriage that matterrs is the state's. It draws a line based on gender, hence the gender discrimination. That gets the debate past all these arguments about definitionns of marriage--which beg the question, really, and are no more forceful here than they would be in the form "marriage is defined as a union between a white woman and a white man"). The whole point is that the very definition of marriage itself discriminates.

Anyway, as a sidenote, I really can't say I've ever found the polygamy slope or the "marry your pet" slope persuasive. If we're worried about the Court constitutionalizing polygamy, we've got a valid disctinction: discrimination based on gender triggers intermediate scrutiny, discrimination based on number gets rational basis. Big difference. If we're worried about voters legalizing polygamy, big deal, voters should do what they want. But seriously, voters aren't going to legalize polygamy just because they want to be principled. If all I've said is right, then we end up in just the place Volokh ended up: maybe MM or FF parents won't raise children as well, and it could be dangerous to wade into that kind of uncertainty regarding such an institutionn as the family. That, I think, is really the only concern I find persuasive, and factual questions about parenting and what might actually happen in gay families is what matters. It's not like all the hetero couples will catch the gayness disease and the whole institution will be undermined.

Okay, I've got 250 pages of reading this weekend, so this is my last comment, but feel free to respond anyway. ;)

Posted by: Nick Morgan at April 15, 2004 09:39 PM

Tony, I don't think you have any clue what you're talking about!

You said: "On the other hand, Loving occurred after almost all states had gotten rid of their miscegenation laws anyway. To the extent that the court acted, it acted with the swell of popular national legislative opinion...But no one really cares because you couldn't have gotten the miscegenation laws re-passed by the time they decided Loving anyway."

Read here, to see that "[a] Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of southern whites," or try here, to read that "[i]t was only three years ago that Alabama became the last state to drop its (unenforceable) ban on mixed marriage, and it did so with just a 60%-to-40% vote by residents to make the change."

A "swell of popular national legislative opinion" leaning that way in 1967???? And that's just the result of a quick google search.

If it hadn't been for that conservative bogeyman "activist judges," interracial marriage might well have been something you & I saw ended early in our lifetimes.

Posted by: Visible Hand at April 15, 2004 09:42 PM

Tony, you wrote "guess I'm figuring that if what you want is an admission that the law treats homosexuals differently from heterosexuals, then it's an easy admission to make, but it doesn't get us very far. No one on the other side was saying that the present definition of marriage doesn't make a distinction between men and women, but simply that it's a definitional distinction of the term. Assuming I allow you that--where has it moved the debate?"

Nick answered almost exactly what I've been saying to you, in the other thread.

Yes, we all know the Government discriminates all the time. And as you point you, any definition or distinction to some extent discriminates. As I said in the other thread, "after all, the governtment discriminates all the time, young v old (ie driving) etc, and it must just do so reasonably--and discriminating on the basis of innate characteristics, like race, gender or silly things like eye/hair color, obviously is not reasonable."

As Nick notes, discriminating on characteristics like race receives strict scrutiny, gender intermediate, and things like age/number need only receiv a rational basis analysis.

I think it's pretty easy to craft a basic, simple rational basis as to why it makes sense to limit the various benefits of marriage to duo; i fail to see any arguments that adequately explain the current discriminatory definition of marriage that limits it to M-F duos, excluding M-M & F-F duos.

Posted by: Visible Hand at April 15, 2004 09:51 PM

VH:

I quote from Loving: "After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md. Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage..." (Footnote 5, I don't feel like Bluebooking). Besides my not instinctively trusting an activist website discussing an uncited Gallup Poll whose questions I can't source, Gallup Polls aren't law. Nor, at the time of Loving, were any states that didn't have miscegenation laws moving to enact them. Show me some history if you'd like, but otherwise, I stand by the numbers, and the numbers of states like Virginia were decreasing steadily.

(As for the Alabama election, what a group of people vote to do with an unenforceable law is hardly dispositive.)

I don't know how old you are, but I simply don't buy that change would have been that slow.

As for your second argument, while you 'don't see' such an argument, I suggest that such blindness is wilfull. Besides the fact that marriage piggybacks on religious institutions--this is why priests are allowed to marry people and the marriages are civilly binding--which leads to its own equal protection problems, the problem is that what happened in Loving and what would have to happen with gay marriage aren't equal.

As Nick points out, one could attempt to define marriage as a union between a white woman and a white man. However, that's not what any of the statutes considered in Loving actually did. Rather, they left marriage to its common definition--which historically in this country has never been considered to include two members of the same sex--and banned that institution between certain groups. It did not change the nature of the institution itself, however.

In that sense, what you're asking a court to do here is very, very different.

And incidentally, I look forward to hearing the 'rational basis' on which you'd deny polygamy. Unlike homosexual marriage, a nearly untried experiment, there's a number of perfectly healthy, functioning societies that have done reasonably well with polygamy.

Posted by: A. Rickey at April 15, 2004 10:34 PM

Come on. I've already told you already--a long legal tradition seeing marriage as a duo. Great that other cultures have different systems--they're not us. Or how about--again, as I've said already--judicial economy (not having to litigate disputes between two husbands after their wife dies).

If you're not even going to read what I post, and ignore the questions I ask you (again, what basis do you advance for the state discriminating onthe basis of gender in granting rights&privileges to M-F duos but not to M-M/F-F duos), this is pointless. Likewise your refusal to admit error---16 states, in 1967, having such laws obviously can not square with "sweeping national sentiment" or whatever. And no, the Alabama law is not dispositive, but it says an awful frickn lot. And if you just want to pretend it doesn't, ignore what I've said and what I've asked, that's fine.

Posted by: Visible Hand at April 15, 2004 10:54 PM

One last thing, a couple more links on interracial marriages.

From this year: 73 percent of Americans approve of interracial marriage. In a 1958 Gallup poll, when the question was posed only to whites, just 4 percent supported mixed marriages.

73, today, ain't all that great (btw, same poll reported here).

also, those same numbers from earlier, from that 'suspect' activist site, appeared here (altho somehow I'd guess you'll snipe at them too).

Posted by: Visible Hand at April 15, 2004 11:11 PM

VH:

A) As posted in the other thread, neither a traditional view of marriage or ease are reasonable answers: neither of them have any more force against polygamy than they do against gay marriage. Since I have no problem with saying either is a rational basis--indeed, a 'legitimate state interest' sufficient to withstand even intermediate scrutiny--I'm willing to accept them as good arguments for both. You're unfortunately stuck with distinguishing them. The reason I've not answered is that, happily, it's not my burden. I can go with 'traditional marriage', steal from Lawrence, and pretty much cover intermediate scrutiny, all the while conceeding your point. There's other reasons, but I don't see the need to go to the effort. (Though I think the 'judicial economy' one is actually pretty bunk, since the solutions to just about any judicial problem are simple and, albeit in other systems, well precedented.)

Likewise, I have no error to admit: legislative sentiment, which is probably most easily defined as which way legislatures are going, is far more dispositive of public opinion than Gallup polls. After all, a single-issue poll only measures preferences on a single issue, which--unless we all of a sudden go to a lot of referenda--isn't how we make decisions in this country. In 1967, states were striking down miscegenation laws, and no state I know of was trying to reinstate it. (Happy to be proven wrong here.) Legislatively, the drive was gone, whatever the polls said.

(Further, you've given me two more sources that give the same number in isolation. I'm not being mean, or even as sarcastic as normal, in disregarding them, I merely don't take such things as that interesting, VH. To make evaluation of a poll worthwhile, you need three things: the possible answer, the group polled, and most importantly, the question. Best is to have the question in context of its compatriots. None of your sources give me that.

For instance, the question which seems, though one can't be sure, to have been asked by Gallup is "Do you approve of interracial marriages?" This is quantitatively different from "Do you think interracial marriages should be illegal?" or even "Do you think that interracial marriages are a good thing?" To distinguish between 'approve of' and 'think are a good thing,' for instance: someone who lives in the Deep South and is an ardent multiculturalist. Such a person may think that an interracial marriage would be socially difficult for the couple, and thus 'not a good idea,' though they may think that objectively it's a 'good thing.'

So yes, you've found the same item quoted thrice, but with no more information that would be helpful. The 1958 poll, almost a decade out, isn't really worth considering.

Similarly, I lived in Alabama. It's where I went to high school, and having lived there seven years, I claim a certain amount of knowledge about its ways. For this reason, I'm not entirely surprised at the 60%-40% result, but not hugely worried by it. I don't know what you think it's indicative of, but it's not particularly strong proof. Sure, there's some folks who just don't like the idea of black-white marriage, though not enough to make a majority, and certainly not enough to make a legislative coalition. There will also be a certain number--more than I suspect you think--who will vote against it because it's an 'uppity northerner' bill, and its a chance to thumb a nose without doing any harm. (After all, who cares the result, legally, since the law's unenforceable?) There will be some strict constructionists who are determined not to read that requirement into the 14th Amendment, who may similarly be contrary. And given the quality of Alabama ballot drafting--you can trust me on this--I'm not going to be too surprised to find a number of people just purely confused.

So, end result, show me what's going through the legislature--it's a pretty good measure of where the wind's blowing. The rest is colorful, but irrelevant.)

The trouble is that despite the insistence that this is gender discrimination, the burden's not on me here. Further, I've not been able to find where you can discriminate on the basis of gender because of a bond of two people, as opposed to against an individual. Certainly sexuality involves couples, as opposed to gender, which involves individuals, and that only gets rational basis review. So I'm not sure we're even in intermediate scrutiny land here...

Posted by: A. Rickey at April 15, 2004 11:41 PM

Blah... blah... blah...

Nick,

Of course denying same-sex marriage is discriminatory as any law that involves a classification is discriminatory.

Moreover, there probably aren't too many mainstream conservatives who would even bother making such as silly argument.

I once understood this whole sex discrimination argument in terms of gay marriage (there's a notable Supreme Court of Hawaii case on it called Baer that was a fractured opinion with multiple recusals and replacement judges hearing the case), but largely it's a waste of time to think about.

I could twist it this way: There's no sex discrimination because neither gay men nor gay women are treated differently from one another in terms of right to marry someone of their same sex. How's that? ;p

Posted by: Brian at April 16, 2004 12:53 AM

Oh, sex equality, Tony Rickey, and my right to marry. If I weren't totally drunk after the Law Journal's "unofficial" banquet, I would comment more in depth.

In short, Tony's wrong, Andrew's already slammed Shelby (available, regrettably, to TNR subscribers only), and I need sleep.

Posted by: Chris Geidner at April 16, 2004 02:00 AM

Brian, first you say

    there probably aren't too many mainstream conservatives who would even bother making such as silly argument

and then you make such an argument:

    There's no sex discrimination because neither gay men nor gay women are treated differently from one another in terms of right to marry someone of their same sex. How's that?

I should probably stop here, but to address your other comments I'll note that I quoted someone who made the "it's not sex discrimination" argument in TNR, certainly a "mainstream" publication. Finally, how could you not anticipate my obvious counterargument to your "twist": try out that twist to defend anti-miscegenation law and you get "black men and black women are both 'equally' prohibited from marrying whites." If you really think that's what equality means, then obviously there is a dispute about discrimination, in which case I'm not wasting my time.

Posted by: Nick Morgan at April 16, 2004 02:15 AM

Ummm... Uhh.... you poopie-head!

/runs away.

Posted by: Brian at April 16, 2004 02:22 AM

Take a deep breath guys and dolls and read "LOVING LAWRENCE" by Pamela S. Karlan of Stanford Law School, Research Paper No. 85, March 2004, available via SSRN: http://ssrn.com/abstract=512662 which ties these cases together addressing both due process (liberty) and equal protection approaches under the 14th Amendment. The article is only 20 pages long, double spaced.

Posted by: Shag from Brookline at April 16, 2004 07:37 AM


Shelby Steele wrote something like that? I'm amazed. It is the equivalent to the argument that the state of Virginia used to justify its anti-miscegenation law in Loving vs. Virginia.

I wonder what part of "nor shall any state...deny to any person within its jurisdiction the equal protection of the laws" does Steele not understand.

Posted by: raj at April 16, 2004 11:42 AM

Okay Tony, one more time, to your primary objection that:

you don't believe polygamy & Same-sex marriage are distinguishable, and thus both deserve mere rational basis consideration.

I've said this in other posts in these threads, and I've yet to see you reply to it at all, much less in any convincing fashion.

The state grants all kinds of benefits to groups of two individuals--the right to file joint tax returns, not to be forced to testify against one's partner, etc etc etc.

Any M-F duo can receive those rights. No M-M or F-F duo can. What is the difference between duo #1 (M-F) & duo #2 (M-M)? The gender of a member of duo #2. In every other way they're the same--both residents of state X, both Americans, tax paying, non-felonoius citizens, etc etc. The government grants duo #1 all kinds of benefits & privileges it won't grant to duo #2. The only difference between the two duos is gender.

The state refuses to let you & I file a joint tax return. But the state would happily let you & PG file one. You and I can't change our gender. The state is discriminating on an innate & immutable characteristic. That's despicable.

Now, yes, you, PG & I all can't file a joint tax return together. But if same-sex marriage were approved, each of us would be able to file a joint tax return with any 1 other person in the country. We three may really want to file that return together, but we can't. The government only wants to get returns from 2 people.

The Government's decision to tell me, sorry, you are restricted to choosing just 1 other person to enjoy these rights & privileges isn't troublesome because it's not discriminating against any particular class of individuals--I can choose a black man, a black woman, a green woman or a fuschia man to enjoy those privileges with. Number is not an innate characteristic.

But the Government telling me, sorry, you & Tony can't enjoy these rights, because you both are men. You can enjoy these rights of coupledom with any woman you want, that's cool, but not with another man. That's very, very, very different from the government restricting rights/privileges given to combinations on the basis of number, which does not discriminate against any individual on the basis of any innate or immutable characteristic.

I apologise for any repetitiveness, but I swear I've said exactly this numerous times, and I honestly don't recall hearing any answer back.

BTW, I grew up in Nebraska, so I also know what it's like to be from a small-minded & discriminatory region. I also have a lot of respect for Gallup, having worked as a pollster for them throughout highschool (they're based in Nebraska, now Omaha, but Lincoln when i was there). So, I respect their polls immediately, and the way black & white couples were treated in my high school is partly responsible for my belief, expressed upthread, that interracial marriage bans may well have persisted a good deal longer than they did were it not for those much-malinged activist judges who decided Loving.


Posted by: Visible Hand at April 16, 2004 11:45 AM

The state refuses to let you & I file a joint tax return. But the state would happily let you & PG file one. You and I can't change our gender. The state is discriminating on an innate & immutable characteristic. That's despicable.

Unfortunately, the only sensible answer to that, VH, is the one I gave, and have given--it's not a very good argument. The state discriminates--and indeed may discriminate, on immutable characteristics. (Affirmative action, for one.) It merely has to survive some degree of scrutiny.

The question then becomes is this discrmination on the basis of sexuality--which seems according to Lawrence to get rational basis scrutiny; or gender, which gets, sometimes, 'intermediate' scrutiny. Which brings us to:

Any M-F duo can receive those rights. No M-M or F-F duo can. What is the difference between duo #1 (M-F) & duo #2 (M-M)? The gender of a member of duo #2.

Now, me, I'm going for sexuality over gender, simply because this is a binary relationship we're talking about. The entire 'gender' argument requires holding one side of the couple (A) constant and claiming that because he can only marry (B1) of the same sex, then (B2) is being discriminated against. But I can't think of a case in which that applies for gender discrimination, which generally involves a single individual and the state, not an individual's gender in combination with another's. Which would more properly be sexuality, which deals with a pairing of genders, but is useless in individual cases.

So if you'd like to say there's an impressive 'moral argument' for same-sex marriage, well, we can go back and forth on that. A lot of it will depend on whether you think sexuality is morally neutral, and of any interest to the state, a question I'm willing to leave to legislatures. Again, you'll never find me having argued against imposing gay marriage legislatively. I'm mostly objecting to the comparison to Loving, which can be distinguished in a number of ways.

Posted by: A. Rickey at April 16, 2004 02:05 PM

I know I should be studying, but I have to say, Tony, that you haven't distinguished Loving (with respect to the discrimination question) or ever really confronted the force of my analogy. You say that it's not gender discrimination because discrimination involves "a single individual and the state, not an individual's gender in combination with another's." Um, obviously that argument would lead you to say "anti-miscegenation laws don't involve a single individual and the state, they involve an individual's race in combination with another's and thus don't discriminate." Again, if you think anti-miscegenation is race discimination, it follows that taking account of race in a couple's combination is race-discrimination. Thus, taking account of sex in the make-up of a couple is sex discrimination. If you don't think anti-miscegenation is race discrimination, then just say so, for goodness sakes, so I can't stop repeating these arguments.

The only relevant distinction you've attempted came earlier:

    Also, can't you phrase your two statements as:

    The law states that the race of two individuals cannot be part of the definition of marriage.

    and

    The law states that the sex of both individuals may be part of the definition of marriage.

    In which case some easy distinction between the two can be made.

I don't know why you would line up a comparison like that in support of your arguments: the comparison shows it's own difference, and the distiction is exactly my objection! In one case, the law says you can't take account of race in marriage. In the other case (against gay marriage) the law says it's okay to take account of gender. Plus, your lineup doesn't isolate the very issue I'm getting at: whether there's discrimination, not whether it's okay for whatever reason.

If you want to respond, I'd really like you to look closely at what I am arguing, and confront it where it's strongest. It doesn't matter how many states sign on to a definition of marriage, or whether definitions are justified for whatever historical reasons. I'm solely interested in establishing the claim that a government definition of marriage that excludes same sex couples (whether embraced by 3 billion people or zero) discriminates on the basis of sex.

Posted by: Nick Morgan at April 16, 2004 02:58 PM

If you want to respond, I'd really like you to look closely at what I am arguing, and confront it where it's strongest.

Nick,

I did address it, and moved on. If you look above, I said that, "No one on the other side was saying that the present definition of marriage doesn't make a distinction between men and women, but simply that it's a definitional distinction of the term. Assuming I allow you that--where has it moved the debate?"

So yes, if you want to define discrimination in its sense of 'making a difference on the basis of X qualification,' then you're right: the present definition of marriage does this. If it didn't, we wouldn't be having a debate. If the only point is that the state, in defining marriage, makes a distinction on the basis of sex, then yes, fine, point granted, and you can have the set and match to boot, but I have no idea why one would care.

You just get back again to the meaning of words. I could just as easily say that marriage under the old Virginia statue didn't discriminate on the basis of race, but did on whether one was a miscegenist. However, given that 'micegenist' isn't a standard part of our political lexicon, nor were they a distinct organized political group, one wouldn't express it that way. Of course, that's largely because race wasn't integrated into the very idea of marriage in the same way that sex and sexuality is in our society--rather why all that conversation about states and such was relevant.

Posted by: A. Rickey at April 16, 2004 03:24 PM

Good post Nick. Btw Tony, in case you don't check below, I posted a reply to you on the other thread. Like Nick, I don't buy your semantic dodge--this really is about gender & not about sexuality.

Posted by: Visible Hand at April 16, 2004 03:24 PM

No Tony, you didn't move on. Because otherwise you wouldn't still be arguing with me & claiming that gay marriage bans discriminate not on sexuality but on gender.

And we've told you where it moved the debate--to asking why the government can legitimately defend conferring rights solely on the basis of gender. Yes, gender does not receive the same strict scrutiny that race does, but it's some considerable scrutiny nonetheless. I've still yet to hear from you why the Government is allowed to discriminate on gender & tell me I can't choose to marry a man & can only enjoy all the many rights of coupledom with a woman.

Posted by: Visible Hand at April 16, 2004 03:28 PM

er, whoops. those first two sentences should have read:
No Tony, you didn't move on. Because otherwise you wouldn't still be arguing with me & claiming that gay marriage bans discriminate not on gender but on sexuality.

Posted by: Visible Hand at April 16, 2004 03:29 PM

Well, I'll tell you why one should care. Once you've conceded that the state draws a sex-based distinction, you've conceded that the government is discriminating on the basis of sex. Unless, of course, you really think there is some magical difference between, on the one hand, drawing an X-based distinction and on the other hand discriminating on the basis of X. If so, then you must admit that miscegenation is not race discrimination. Do you admit it? Your bit about discriminating on the basis whether one was a miscegenist makes no sense: if you really want to play that "meaning of words" game, we might as well say that a restaurant bearing the sign "No Niggers" isn't race discrimination, it's actually discrimination on the basis of people the restraurant owners don't like, namely, "niggers." Hey, if it's "the meaning of words" then we might as well go back to slavery, because "person" is just a word, right? But none of that matters, because if the only slope you're worried about is judicial, we already know that anti-miscegenation is race discrimination, from Loving: "There can be no questio but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race." So feel free to call it "discrimination on the basis of whether one was a miscegenist" but the point is that such discrimination draws a disctinction based on a protected class.

So what does that mean for gender? If the government is drawing a distinction based on a protected class of sex (which you have already conceded), then we've got intermediate scrutiny.

This is one of the most clear-cut, obvious arguments I have ever made, and I must say that I'm surprised to see you continue insisting that youo don't buy the "gender discrimination" bit, even though you agree it's a disctinction based on class. You're a very smart guy, Tony, but these arguments don't even pass the straight-face test.

Posted by: Nick Morgan at April 16, 2004 03:49 PM

"Can't we all just get along?"

- R. King

Posted by: Brian at April 16, 2004 06:14 PM

Friday, April 16, 2004
ok, i'm ready to take a position on the gay marriage thing, finally.
the government should not discriminate against same sex couples who want to wed.
to do so would be arbitrary and capricious. why, it would be like telling bakers how many hours a week they could work, or granting a monopoly on frozen water.

Posted by: arbitraryaardvark at April 17, 2004 12:32 AM

"And incidentally, I look forward to hearing the 'rational basis' on which you'd deny polygamy. Unlike homosexual marriage, a nearly untried experiment, there's a number of perfectly healthy, functioning societies that have done reasonably well with polygamy."

Jon Rauch has given a pretty good one as to why number discrimination is rational (and I'll supplement info beyond his argument). If you look at polygamy & societies, yes, this is something that has historically been so common that it indeed can be called "normal." Yet if you examine the "normal" pattern, it is always 1 man with more than 1 woman (NOT 1 woman with more than 1 man). Where this becomes widespread, the men married to more than 1 woman, cause a shortage of women, and invariably deny other men the right to marry.

And if we examine human nature, this seems to be a naturally occuring phenomenon that is in need of societal correction. In our "state of nature" caveman days, the Alpha males tended to as many women as they could to the exclusion of the "lesser" males. In other words, the Alpha males got to spread their seed the furthest and the widest, and many men didn't get to spread their seed at all. Richard Posner estimates in "Sex & Reason" that because of this, only 50% of males in our evolutionary period actually mated, and the 50% that did mated with the entire crop of fertile women.

Posted by: Jon Rowe, Esq. at April 17, 2004 04:45 PM

Sorry for the choppy prose, but I'm in a library that is closing in 2 minutes.

Posted by: Jon Rowe, at April 17, 2004 04:47 PM

Jon:

But certainly dealing with a 'shortage of women' for mating doesn't require discrimination against those who want to legitimate their relationship with more than one individual and gain access to a 'package of benefits?' You can accomplish much the same thing by eliminating much of the stigma against adultery--which our laws and current mores are more and more in the process of doing anyway. That gets you to Heian Japan, though this is sexual mores more than marriage.

Besides, assuming that we've gotten to polygamy because we've decided that the laws are discriminating on gender--which if we've gotten this far on the argument above, we must have--then the kind of polygamy you're describing above certainly isn't likely to hold, especially in this day when property and the other symbols of power aren't male only. There's no reason to assume that a society of polygamists in the U.S. today would center around 1M-XF relationships: why wouldn't a powerful female Skadden Arps partner, or a pre-trial Martha Stewart, not have a bevy of male husbands?

Besides, given that the folks who would have multiple marriages in this day and age would be the folks who are presently actual polyamorists, it's worth looking in their circles. I can't put my fingers on any numbers, but polyamorist circles are most definitely not all-male.

So I'm not sure that's even rational, much less convincing, but I'll look up the Posner.

Posted by: A. Rickey at April 17, 2004 05:38 PM

Well, they can be squared against Loving - if you believe Loving is wrong.

Posted by: centrist at April 17, 2004 09:14 PM

butoh la korang suma niiii...! pegi mati laaaa
pengotor...!

Posted by: hulala at August 28, 2004 12:51 PM
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