For those who think gay couples want “special rights” — or that they can simply form contracts to simulate marital rights without getting legal marriage recognition — or who think it should be just up to the states to decide it because, after all, marriage is a state thing — here’s a sobering review of exactly what being married ensures on a federal level. And what, therefore, is not available to committed, monogamous gay couples who are married in all but legal name.
The GAO in 1997, with the passage of DOMA, identified 1,049 federal laws and regulations related to marital status.
We’re not talking special rights here, folks. We’re talking special lack of rights (and, as well, obligations).
(via kottke)
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First!
*snerk*
Anyway’s…
I think that I sent you or provided this link in comments back in the begining of the year.
And remember folks, Equal means Special.
This looks to be one of the most divisive issues around, right up there with reproductive rights. But then, I suppose most civil rights issues were in their time. I look back at Canadian parliamentary debates involving giving the vote to women back in the 1910’s (“it will harm their ovaries” one member of parliament solemnly told the house) and I can laugh now.
But then, I have the vote now.
I was particularly saddened to see the report by the Anglican Church asking the American branch of the church for an apology and a promise not to ordaine any more gay bishops. I had my fingers crossed that they wouldn’t bend to the wishes of their more conservative branches in countries such as Africa, but I guess that’s not to be.
Even here in Canada, where five provinces have now amended legislation, the right for gays to marry is not universal. One of our provinces (Alberta–think Texas North) is threatening to use the notwithstanding clause to opt out of any Canadian constitutional amendment that would formally enshrine in our constitution the right for gays to marry. Since our constitution prohibits discrimination because of sexual orientation–and as you pointed out, prohibiting gay marriage discriminates by limiting access to benefits that straight couples get when they marry–the point is moot.
It’s just too bad that couples in several provinces had to pay for very protracted litigation to get the right formally acknowledged.
In Canada we’re about a generation away from having the brouhaha die down. But it will. And one day people will find the sight of a gay marriage no more remarkable than the sight of a woman leaving a polling booth.
I can hardly wait.
Me, too.
I actually don’t think we’ll be too much behind, ultimately. There will for a long time be people who look askance at it, the way they look askance at interracial marriages, or other such artifacts of a bygone era. But I do believe that time — and, with it, acceptance-through-familiarity (the flip side of rejection-through-fear-of-the-unknown) — is on the side of recognition of our own Consttitution’s “equal protection under the law” applying to gay couples as well as straight ones.
What I want to know is: what part of “equal protection under the law” don’t the advocates of the marriage amendment understand?
Well, that is, of course, the basis for amending the Constitution, to avoid some “activist” court from ruling that, indeed, that applies to gay couples seeking the same marital rights as straight couples, unless someone can demonstrate to the courts that there is a fundamental, effective difference that justifies the state’s discrimination in such a case.
I guess I should rephrase my question. I’m really asking why advocates of the marriage amendment don’t accept the doctrine of equal protection under the law. Or if they do accept it but think that there are other things that are ore important, how can they think that anything is more important to our political union than freedom and liberty for all?
Advocates of the marriage amendment seem to think the institution of marriage, is important enough that they are willing to sacrifice some freedoms in order to preserve it. But I just don’t see it: I’d much rather live in a society without marriage than in a society without freedom. In addition, I don’t agree that the institution of marriage will be weakened by allowing same-sex couples. To the contrary, I think marriage will be strengthened by allowing same-sex couples.
I guess I just find the view of those who support the marriage amendment to be incomprehensible.
I don’t agree with ’em, so bear that in mind as I play Devil’s Advocate, but …
…[W]hy advocates of the marriage amendment don’t accept the doctrine of equal protection under the law. Or if they do accept it but think that there are other things that are ore important, how can they think that anything is more important to our political union than freedom and liberty for all?
They *don’t* consider gays to be equal in this particular instance (either attaching greater significance to what they do in bed than how they live in the community, or considering homosexuality to be intrinsically wrong/sinful/dangerous). They are afraid, though, that courts that feel differently will overrule them based on the Equal Protection clause. This might be a matter of concern over whether their arguments are strong enough (or are simply a matter of justified aesthetics), or whether the Evil Activist Liberals have taken over the courts.
Advocates of the marriage amendment seem to think the institution of marriage, is important enough that they are willing to sacrifice some freedoms in order to preserve it. But I just don’t see it: I’d much rather live in a society without marriage than in a society without freedom.
Marriage is seen as a fundamental building block of society, comparable to, say, parenthood. Preservation of that institution is seen as key to presevation of our society and culture. Neither marriage nor parenthood exist purely as freedoms — they carry certain legal (and cultural) obligations with them. Further, rules and laws about what is a legal marriage (or, in the past, a legitimate parenting) are many.
The argument would be, then, that discarding what is seen as a basic aspect of what marriage is — a man and a woman getting together, primarily in the framework of raising children — we are further breaking down the fundamental building blocks of our society, the result of which will be chaos and ruin and loss of the very freedoms which we value.
Freedom, these folks would say, is not license. We do not live in a state of perfect freedom, because that’s anarchy. Fundamental (and, I daresay, God-given) rules apply, though within those rules we enjoy tremendous freedom, etc. Current restrictions on who can marry are limited, but remain essential and axiomatic to the institution, otherwise you might as well allow people to marry animals, children, or multiple partners.
In addition, I don’t agree that the institution of marriage will be weakened by allowing same-sex couples. To the contrary, I think marriage will be strengthened by allowing same-sex couples.
Well, there you got me. I agree. Indeed, I think marriage will be strengthened by applying the word to both straight and gay couples, not by setting up a parallel “civil union” structure for gays.
I would suppose that those who disagree see the genders involved in marriage to be so much a part of what marriage is, that to argue something differently (without even getting into slippery slope concerns) is to exercise in Orwellian Newspeak (“Freedom is Slavery, Gay Unions are Marriage …”).
And, of course, there is again the religious aspect of it, though for obvious reasons a lot of people don’t raise that. Still, there are a lot of folk who think that homosexuality, let alone public and civil acknowledgment of homosexuality, is just plain wrong (whether they have evidence of some sort of objective harm it does or not — or whether or not they accept objective harm as the test for wrongness). To them, the whole question approaches absurdity, like arguing that [reprobates of a certain type] should be allowed to commit [reprehensible crime] because the law should treat them equally, too.
Again, it may be unfair for me to try to explicate these reasons, except insofar as I have had them used to me in previous debates on the subject. I respectfully (in some cases) disagree with them.
Dave,
Thanks for trying to help me understand the debate better.I recognize that you don’t agree with the arguments that you described, but if you’re right about the outlook of the marriage-amendment advocates, then I understand their position better now. I still don’t agree with it since I can see three things that I think are really bad reasoning.
First, if the marriage-amendment advocates think that same-sex marriage will result in “chaos and ruin and loss of the very freedoms which we value,” and they’re willing to curtail some people’s freedom to avoid that result, I can see the argument, but I’m dubious that the result will be as they say, and I’m wary about predictions of disaster due to social change. Social change almost never results in absolute disaster and chaos.
Second, if the marriage-amendment advocates think that allowing same-sex marriage is a step toward allowing “people to marry animals, children, or multiple partners,” it looks like a slippery slope fallacy, or perhaps a straw man. There are clear moral differences between same-sex marriage and marriage to animals, or children. Animals and children are not competent to make such decisions, which isn’t true of same-sex partners. Mutiple-partner marriages have traditionally involved a basic inequality between the partners which is not present in same-sex marriage. (It might be that some variety of multiple-partner marriage could overcome the inequality problem, but to my knowledge current models of polygamy/polyandry don’t, so there’s good moral reason to reject them.) Given these moral differences between same-sex marriage and the other kinds, we’re not on a slippery-slope from the one to the others.
Third, if the marriage-amendment advocates think that same-sex marriage amounts to an “exercise in Orwellian Newspeak” then we just disagree about what the words mean, and it seems silly to enact a constitutional amendment over a disagreement on the definition of a word.
Given what you’ve said, I think perhaps the marriage-amendment advocates can say that they are in favor of the equal-protection clause, and that they are forbidding everyone from marrying same-sex couples. The key is that we normally make things illegal when they harm others (I leave aside the issue of victimless crimes for the moment since I don’t see how to handle it right now). So the question comes downt to whether or not same-sex marriage harms other people. I don’t think it does, but if that’s the point of difference, at least I understand where the disagreemnt is now.
Thanks again.
I’m wary about predictions of disaster due to social change. Social change almost never results in absolute disaster and chaos.
That may depend on your definition of “disaster” and “chaos.” I believe that some of the folks holding that position would see, for example, the sexual revolution and “women’s lib” as having disastrous results of broken families, millions dead by abortion, etc.
And, of course, there’s that whole Sodom and Gomorrah thang.
There are clear moral differences between same-sex marriage and marriage to animals, or children.
I agree completely. Others, obviously, disagree, though for reasons I cannot fully fathom (aside from different axioms).
Mutiple-partner marriages have traditionally involved a basic inequality between the partners which is not present in same-sex marriage. (It might be that some variety of multiple-partner marriage could overcome the inequality problem, but to my knowledge current models of polygamy/polyandry don’t, so there’s good moral reason to reject them.)
I’m probably more willing to tolerate polygamy (whether polygyny or polyandry) in theory, though, frankly, even in cases where there is not inequality involved (e.g., an older man taking on multiple young wives, as is generally the case in most American polygamy), it seems to me a much less stable situation than monogamy, group dynamics-wise. I’m not sure that practical concern is enough to warrent not doing it, though.
In other words, if pursuing Equal Protection meant legalization of polygamy (bringing to it the provisions of current marriage law, with the added complexity of multiple members and the possibility of some members deciding to divorce), I would not have a moral or ethical objection to it, though I would have doubts about how well it would work. (But, then, I have doubts about how some “normal” marriages will work, too, and nobody asks for my approval of them, either.)
Third, if the marriage-amendment advocates think that same-sex marriage amounts to an “exercise in Orwellian Newspeak” then we just disagree about what the words mean, and it seems silly to enact a constitutional amendment over a disagreement on the definition of a word.
Except that what *I* think the word means is obviously different, and has significant implications in its difference, from what *they* believe the word means. So I can’t agree with you here — the intent is to define the word, and, by extension, how the institution is applied in society. That’s not a trivial thing (though I would argue against the converse, a constitutional amendment defining marriage in such a way as to include gay couples).
The key is that we normally make things illegal when they harm others (I leave aside the issue of victimless crimes for the moment since I don’t see how to handle it right now).
A substantial percentage of those who would favor the amendment would argue that a moral wrong constitutes a harm. (I also think a substantial percentage are arguing, not from an argument of harm, but from an argument of aesthetics — the “ick” factor — whether or not they acknowledge it or not. I.e., the concept of homosexuality is “icky,” and thus is wrong, and thus must be harmful.)
So the question comes downt to whether or not same-sex marriage harms other people. I don’t think it does, but if that’s the point of difference, at least I understand where the disagreemnt is now.
I agree with you here. I find most arguments of “harm” done by gay marriages to be unconvincing, including Alan Keyes’ recent assertion that gay couples adopting kids will inevitably lead to incest (yeah, I know, it doesn’t make any sense to me, either).