Tuesday, February 23, 2010

Gay Marriage

Bill Flanigen has a damn good post on gay marriage that raises two points I think often get overlooked. Although I have brought both up before.

First, he references Seth Goldin who writes:
Of course, that sexual preference is not a choice should be completely irrelevant anyway, politically. It is completely illegitimate to attempt to use the force of the state to prohibit any kind of consensual sexual behavior between adults.

It's not really about outlawing wanting to have sex with members of the same sex, but about outlawing the actual activity of having sex with a member of the same sex. But even then we've, thank goodness, gotten passed the idea of outlawing it. The important point is about the activity, not the source of the desire to engage in the activity.

To use an extreme example, just because a psychotic killer is naturally inclined to kill and eat people doesn't make it okay. Likewise, even if it is natural, the morality and legality of homosexual sex is a separate issue, to which naturality may bring something to the discussion but isn't the "it's natural; case closed" thing many people would like it to be.

Second, Bill writes:
liberals tend not to appreciate the consequences of making marriage a more "flexible" institution (consequences that opponents of gay marriage are fond of repeating, ad nauseam, in exaggerated forms). I'm talking mostly about polygamy, and how the liberal framework that I endorse is at a total loss to prevent it. After all, if gender is as irrelevant as race, why not number? If the only criteria for marriage is the mutual consent of adults, why limit it only to two adults? Perhaps I'm just revealing my own ignorance, but I have yet to see a serious attempt by a gay-marriage advocate to refute this point.


rahowe said...

I gave you a complete argument on the polygamy red herring many moons ago on this site.

FLG said...

It was unsatisfactory.

Bill Flanigen said...

rahowe -

Could you dig up a link? I'd love to see your argument, if only because I bit the bullet on polygamy a long time ago. I find it strange and off-putting, but I can't imagine a reason that it shouldn't be legal. I'd love to know if/how you reconcile support for gay marriage with opposition to legalized polygamy.

rahowe said...

In brief, and as I argue in Goats Cannot Enter Contracts, the issue is equal access to contracts. Contracts that are not available to anyone, like polygamy, do not cause discriminatory effects.

Imagine hunting licenses. I deny you a deer hunting license for which you qualify because you are (pick a category). I allow others to obtain that license. I have cheated you by not treating you equally. I also refuse to provide you a license to hunt house cats. But, I do not offer house cat licenses to anyone. You have not been cheated in this case.

Bill Flanigen said...

The ban on gay marriage applies to everyone, too. (I'm a straight man. The law says that I, as well as a gay man, am not allowed to marry another man.) Does this mean that bans on gay marriage cause no discriminatory effects?

FLG said...


This is why I found it unsatisfactory.

Your argument seems to be that arbitrary distinctions that apply equally are valid, which I guess I don't object to. However, as Bill points out, the ban on gay marriage is another arbitrary distinction that applies equally.

As I said before, anybody can get married today, they just have to do it with a member of the opposite sex.

rahowe said...

FLG, this means that while you can enter a contract with the partner of your choice, others cannot. What, uniquely about you (or me), should give us a benefit from the state that is denied to others? Why should heterosexuals be a favored class? It is not an earned advantage. It is not one based on merit. It is one based on identity.

This is rightly perceived to be a discriminatory policy. It is a short-coming in our long march toward equality. That is why it must be overcome. The echoes of Loving vs. Virginia are quite loud and embarrassing.

FLG said...


You are making a case for why gay marriage should be allowed -- "you can enter a contract with the partner of your choice, others cannot."


But what Bill is asking, and I always found unsatisfactory in your argument, is why is "you can enter a contract with the partner of your choice" appreciably different from "you can enter a contract with the partners of your choice?"

Your argument has always seemed to then go to a mushy, well, we there's no reasons why we can't to decide that you can limit the number of partners in a contract.

When what Bill and I are asking is why we can legitimately limit the number in a contract, but not the sex?

rahowe said...

The social contract should be open equally to all. This is a founding principle of our nation. Discrimination based on identity is the problem we are experiencing, not an unacceptable lack of multi-party marriage rights.

If there was a demand for the latter that was sufficient to change the law and add that definition to marriage law (majority rule), then we would add it. This, of course, would end the same-sex marriage debate. However, we are not entertaining even a half-serious debate on this, which is why I refer to this issue as a red herring. (Not a single state has approved this while a number have approved same-sex marriage.) Same-sex marriage is also not a slippery slope to multi-party marriage as we could move to that at any time without regard to current marriage law. However, if we adopted multi-marriage contracts, I would fight to ensure that they were equally applied. That is, women, like men, must be free to take on additional partners.

Like the case with multi-partner marriage, there is also no movement to give goats or infants legal standing to enter contracts. This, also, is unlikely to change. It is hard to imagine something so offensive would ever gain the majority favor required to modify contract law.

We do have majority approval of marriage contracts that bring together two competent adults into a state-recognized marriage. We have discriminated entry based on color in the past and continue to discriminate based on the appearance of the adults, i.e. two men or two women. This poor basis for blocking entry to the marriage contract is losing favor as it should.

FLG said...

I still awaiting a definite and clear explanation why equality under the law means that gay people should marry, but polygamy shouldn't be allowed.

"If there was a demand for the latter that was sufficient to change the law and add that definition to marriage law (majority rule), then we would add it."

And so you simultaneously undermine your own argument and implicitly answer Bill and my question in the negative. You have no real theoretical reason why gay marriage should be legal and polygamy not.

Sure, you talk a good game about equality under the law, but what really matters here is what the majority decides. If the majority of the people decide that gay marriage shouldn't be allowed, and many have by passing amendments, then I guess that's okay too.

Ah, but I'm sure you'd object and fall back to their right to equal protection. It's a deeply inconsistent argument and one I still find incredibly unsatisfactory.

BTW, the following is completely non sequitur:
"Like the case with multi-partner marriage, there is also no movement to give goats or infants legal standing to enter contracts."

FLG said...

"Discrimination based on identity is the problem we are experiencing, not an unacceptable lack of multi-party marriage rights."

To ask this more specifically: Why, if my identity means I want to marry more than one person, should I be denied?

And I'm talking some rationale here. Not that it hasn't come up or there's no movement right now.

I think ultimately you are rationalizing your personal preferences in a bunch of logic that is ultimately inconsistent.

rahowe said...

Not a bit inconsistent. We have a two-person marriage contract in this country--in all states--and some states discriminate in access to that contract while others do not.

We do NOT have a multi-partner marriage contract in this nation because no state has added it to its social contract. There is no constituency for it as far as I can determine--no married partners clamoring to add a third person to their contract, no group of three persons asking that they all be permitted to enter into marriage.

I cannot rule out that a state may, in the future, decide to add this to its social contract. If one did so, and did so in a discriminatory manner, say, followed the Islamic practice of multiple wives only, that would be worth fighting.

Your argument is that since I can legally hunt deer, I should also be allowed to legally hunt house cats. That truly is a non sequitor. The right to hunt cats does not follow automatically from the right to hunt deer, and the right to multi-partner marriage does not flow from the right to two-person marriage. Left- and right-handed people are allowed to hunt deer. Both are denied permission to shoot their neighbor's kitty.

The contract between two parties is entirely different than a contract between three. This is hinted at in the Quran that says both that a husband can have more than one wife as long as he treats them equally and then states that equal treatment in this arrangement is impossible. A three-party marriage contract would have to include additions that are not required in a simple two-person marriage contract. They are quite different, not merely a matter of degree as is implied in questions like "if two men, why not three people?"

George Pal said...

In the first place, the state has no business recognizing marriage. The living arrangements people agree upon are neither a concern of the state or anyone else. If the numbers and sex of the partners within the arrangement seek legitimization they ought to come by it by other means. The legal sanction may legitimize the union but it also makes illegitimate i.e. illegal, any opposition – on religious grounds say - to the union. How long before a Catholic “couple” seeks to have their combined bliss blessed by a Catholic priest and the state (courts) step in to resolve the issue.

It would also seem the state’s greatest role in recognizing marriages, of any sort, is as referee and guarantor of equitable disposition in case of dissolution. Again they have no business in this and state laws applying to the distribution of assets are too narrowly applicable; where a legal agreement, arranged by lawyers, and entered into by the partners without the presence of the state, would be far more equitable as it would be particular to the partners.

I look forward to the day when I’m introduced to the bisexual “couple” Bob & Carol & Ted & Alice” – or do I?

Bill Flanigen said...

Other than a citation of the Quran (and the tautology that "they are different because they are different"), do you have any reason to believe that three-party contracts are different in some relevant way from two-party contracts? And if they are different, why is it that they are treated with equal regard in virtually every context except for marriage?

The point I was hinting at in my previous comment was that your argument ultimately boils down to "this isn't a problem because there are no would-be polygamists." (No people whose interests are harmed disproportionately by a blanket ban on polygamy.) In fact, in your comment at 9:34am, you actually argue this explicitly.

You have to make this argument, or you give up the game: If would-be polygamists exist (and they do), then a ban on polygamist marriage discriminates against them in exactly the same way that a "blanket ban" on gay marriage discriminates against gays. The fact that the law in both cases applies to everyone - gay, straight, polygamist, monogamist - is not proof that it is not discriminatory.

It's telling that the "gay marriage isn't discriminatory because gay marriage bans apply to straight people, too" argument has been used by opponents of marriage equality for a long time.

rahowe said...

I take your argument to be that when courts intervene to settle the issue, they should simultaneously decree that multi-partner marriages also be allowed despite no legal claims, simply because this, too, is discriminatory. I will be happy to address this when I return home this evening. If you want to correct my understanding in the interim, please do so. I anticipate referring to "Goats" in my response, so you might consider visiting the Occasional Dissident to read that argument.

- alan

rahowe said...

I will continue on the other thread started by FLG.

Creative Commons License
This work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.