Thursday, March 28, 2013

Is same-sex marriage a matter of equal rights?

Rights can be had either by individuals or by groups.  When it comes to the right to marry, should we think of it as a right that a couple has, or should we think of it as a right that individuals have?

The right of individuals to marry

If we think of it as a right that individuals have, then I don't think the same-sex marriage debate is a matter of equal rights.  The reason is because each individual, whether gay or straight, has the same right already.  Whether you are gay or straight, you have the right to marry somebody of the opposite gender.  So gay people and straight people don't differ in their individual rights; rather, they differ in their desires.  Gay people don't want to marry people of the opposite gender.

But gay people could construe the right differently.  Instead of being "the right to marry a person of the opposite gender," which a gay person would have to admit to sharing along with straight people, they could construe it as, "a right to marry the person of your choice," or "the right to marry the person you love."  In that case, perhaps straight people do have a right that gay people don't have.

But I'm skeptical of that since not even straight people can marry just anybody they choose or anybody they love.  And most gay people would agree.  If we construe the right as being "the right to marry who you love," and if we wanted every individual to have that right equally, then we would have to allow incest.

Now, I know a lot of people just got up in arms about that because you think you've heard this argument before.  But I can almost guarantee you that if you're feeling hot under the collar right now, you're probably just having a knee jerk reaction, not to what I actually just said, but to what you imagine I must've said.  You've heard something similar that was offensive, and you've read that into what I said.  But what I said is actually quite logical and nothing to be offended by it all.  I'm taking the supposed right to marry who we love to its logical conclusion.

1.  Each person should have the right to marry who they love.
2.  A brother and a sister love each other.
3.  Therefore, a brother and a sister should have the right to marry each other.

The only way to reject the conclusion is to reject the right spelled out in the first premise.  So take a chill pill.  I'm tired of coddling people who are unable or unwilling to think carefully and simply react in emotional outbursts like silly children.  If you're still offended, I don't care.  It's up to you to get a grip.  I've done my part.

In summary, if the individual's right to marry is construed as a right to marry a person of the opposite gender, then gay and straight people already have equal rights.  But if it's a right to marry the person you love, then gay and straight people do not have equal rights, and hardly anybody thinks they should.

The right of couples to marry

If the right to marry belongs to groups or couples rather than individuals, then it is true that gay couples do not have the same right to marry as straight couples.  In that case, the debate on same sex marriage is a matter of equal rights.

However, not even same sex marriage advocate really want there to be equal rights granted to groups or couples because if there were, then it would have to be granted to every group or couple that wanted to get married.  Otherwise, the right would not be equal.  They would have to allow polygamy and incest marriages.

Did you just get offended again?  I don't care.  It follows.  Deal with it.

Think about other equal rights we think of as applying to kinds of groups.  Equal rights between races means that people have the same rights regardless of their race.  If white people and black people had the same rights, but not Asians, then we would not have racial equality.  So if the right to marry were granted to couples, the only way we could have equal rights is if the right were granted equally to every kind of couple.  But hardly anybody really advocates that.

So the same sex marriage debate cannot be a matter of equal rights granted to couples or groups.

Then why construe the debate as a matter of equal rights?

I think the primary reason the same sex marriage debate is framed in terms of equal rights is that pragmatically, it's a good idea.  It works.  We have a strong belief in equal rights in this country because if the long hard battle for equal rights between men and women and racial equality.  We have a past of inequality that we're ashamed of.  So if we can frame any right in terms of "equal rights" is going to be rhetorically effective.  It's effective because it's very emotionally appealing and it makes anybody who opposes it look like a bigot.  That lessens the need to argue.

Maybe pro-lifers should frame the abortion debate in terms of equal rights. The unborn should have an equal right to life along with the rest of us.  But I digress.

What's this debate really about?

What this debate is really about is the fact that same sex couples want to get married, and for two reasons--respect and benefits.  If people want something, and there's no reason to deny it to them, then you should give it to them.  It's as simple as that.  That's what the same sex marriage advocates should be arguing.

1.  If people want something, and there's no reason to deny it to them, then you should give it to them.
2.  Same sex couples want to get married.
3.  There's no reason to deny same sex couples the right to marry each other.
4.  Therefore, same sex couples ought to have the right to marry each other.

Somebody who wanted to defend same sex marriage while opposing incest and polygamy could say that this argument won't work in their case since if you plug them in, there are reasons to deny the third premise.  For example, polygamy leads to oppression of women as well as poverty which ends up being a burden on the state.  It also makes divorce and inheritance a nightmare. Incest leads to children with birth defects.  Personally, I don't think those arguments are all that great, but I won't get into that.  The point is that this argument allows same sex advocates to consistently support same sex marriage while opposing polygamy and incest.

Somebody who opposes same sex marriage could attack the first or third premise, and I've heard them do both.

The first premise:  If people want something, and there's no reason to deny it to them, then you should give it to them.

The first premise is attacked by claiming that it isn't enough for there to be no reason to deny something to somebody.  There has to be some positive reason for why you should give it to them other than the fact that they want it.  The state has to have an interest in it.  The reason the government is involved in marriage at all is because marriage is the institution where families are created and the next generation comes into being.  Families are necessary for societies, and regulating marriage is how the government protects families.  By giving married people certain rights and benefits, it encourages people to stay together, and that's good for society.

The state has no interest in regulating same sex marriage because it is impossible for same sex couples to have children.  While same sex advocates point out that it's impossible for some opposite sex couples to have children as well, opponents respond that opposite sex couples are at least the kind of relationship capable of producing children, so it's the kind of relationship that the state has an interest in regulating.  I'm not going to go into the merits of either of these responses.

The third premise:  There's no reason to deny same sex couples the right to marry each other.

I have heard many same sex marriage supporters say that they can't even imagine why somebody would oppose same sex marriage other than because of their religious beliefs.  However, same sex marriage opponents have offered many reasons.

1.  It encourages the kind of relationship that leads to early death.
2.  It would entail the right to adopt children, which would result in those children being denied either a father or a mother.
3.  "Same-sex marriage" is a contradiction in terms since marriage is a union between a man and a woman.
4.  It will weaken the institution of marriage.

Of those three, I think the second one is the strongest, but the third one is the one I most often hear.  An advocate of same sex marriage would obviously not find any of them to be an adequate reason to deny same sex couples the right to marry.  Most flat out deny 4.

What about civil unions and domestic partnerships?

I used to think civil unions gave same sex couples the same rights as married couples, but just denied them the "married" label.  Back in 2008 when I was on that Alaska cruise, I met this guy named Cole who was gay.  When he noticed the badge I was wearing for the apologetics conference, he knew right away that I was a Christian.  We ended up having a long talk about gay rights and the motivations of the gay community.  I asked him why civil unions were not enough if they gave gay couples the exact same rights as married couples.  He said it wasn't just the rights they wanted.  They also wanted the dignity, respect, and recognition that the "married" label carries with it.  They wanted public approval.

But I heard an interesting argument recently in a debate between Andrew Sullivan and Douglas Wilson.

Sullivan, the one arguing for same sex marriage, made an argument against civil unions and domestic partnerships.  He said that if we have civil unions and domestic partnerships, the right would have to be extended to heterosexuals as well as homosexuals.  That would create "marriage light" because it wouldn't require as much responsibility, commitment, or legal force.  That would weaken marriage because many heterosexuals would prefer "marriage light" to the full commitment and responsibility involved in traditional marriage.

Notice that this argument only works if civil unions and domestic partners do not have the same rights and responsibilities as married couples.  That was news to me.

He argued, on the other hand, that allowing same sex marriage would strengthen society.  In general, men who are married are monogamous and men who are not married are promiscuous.  That is true whether men are gay or straight.  If men are not allowed to marry, they will have as many sex partners as they can, and that is bad for society.  For one thing, it causes diseases to spread quicker and more widely.  Allowing gay people to marry would be good for society because it would reduce the amount of promiscuity out there.

He also argued (half jokingly, I'm sure), that if homosexuality is immoral, then we ought to encourage same sex couples to marry.  Why?  Because marriage kills sex.  I thought that was funny.  Of course he doesn't think homosexuality is immoral.  He was just telling people who do that they ought to support same sex marriage.

What's the real reason Christians oppose same sex marriage

In spite of all the legal and pragmatic reasons that Christians give for why we should not allow same sex marriage, I am fairly confident that the real reason they oppose it is because they think it's immoral. They don't want to have to recognize immorality, and they don't want to have to be forced to respect it.

They're also afraid that as homosexuality becomes more and more acceptable in society, Christianity will become less and less acceptable.  That will make it harder for Christians to find employment because if being anti-gay is seen to be morally equivalent to being racist, then society will feel perfectly justified in marginalizing Christians for their religious beliefs and denying them employment because of it.

I think that is a legitimate concern.  Of course I'm sure the homosexual community could care less.  One of my friends on facebook recently posted a link to a Christian complaining about being "persecuted" because of his opposition to same-sex marriage, and he said, "They can dish it out, but they can't take it."  Although I don't think things have risen to the level of persecution yet, I would not be surprised if it rises to that level within the next fifty years, and nobody will think Christians are being wronged.  Christians will be regarded as haters, bigots, and the bane of society, and discriminating against them will become perfectly acceptable.  We do seem to be headed in that direction.


At 4/01/2013 1:37 PM , Blogger DagoodS said...

Good blog entry, as usual. Equally (per usual) there is much I agree with here.

Rights are held by individuals. One may be within a classified group—but it is the individual who holds the right. (And by “right” I am limiting to US Constitutional Right.). Once the Supreme Court determined marriage was a right (in Loving) and determined a right of privacy, free from regulation regarding consensual sexual acts between individuals (Lawrence) same-gender marriage was inevitable. Indeed Justice Scalia forecasted it in his Lawrence dissent.

Additionally, many States (including my own) allow single-parent adoptions. The reasons to deny same-gender marriage crumble as there is no illegal acts being performed, two females or two males can already raise a child (with one adopting them), and marriage is determined as a right.

I do not think a “right” to polygamy necessarily follows—polygamy carries its own inherent problems, as you pointed out, particularly inheritance, and divorce. Further, polygamy has been determined illegal and addressed (long before gay marriage would ever be considered!) It has its own rough row to hoe.

Incest, however (as you point out) does raise a more interesting issue. There are some states where incestual sex is illegal and this has not been addressed (as far as I know) by the Supreme Court whether the same can be regulated.

Personally, I think the driving force against homosexual marriage is an “ick” factor—heterosexual individuals find homosexual sex dirty, unappealing and…well…”icky.” As the culture has become more acclimated and less offended, same-gender marriage becomes more attractive. Incest retains an “ick” factor, and therefore same-gender marriage supporters find themselves trying to rationalize against it without realizing they are engaging in the same emotional distaste as others hold against homosexual sex.

I think it logically and rationally follows if we allow same-gender marriage, the same reasons and arguments would apply to consensual incestual marriage. Being the heathen I am--I have no problem with either.

I would disagree the reason Government regulates marriage is due to families. The marriage statues do not address children and the Government regulates parental rights regardless of the parent’s marital status.

It is unclear whether the growing support for same-gender marriage will result in less support for Christianity. Initially I would tend to agree—this seemed to be a hill Christians chose to die on, if you will, and now they are stuck with it. On the other hand, Christianity has demonstrated a resilience and ability to morph through cultural changes. We already watch it happening among the more liberal branches.

At 4/01/2013 4:47 PM , Blogger Sam said...

Thanks for your response. I'm not familiar with Loving, but I'm really curious about something. What exactly is the right to marry? Does Loving spell that out? What I mean is, is it the right to marry somebody of the opposite sex, or is it the right to marry whoever you want, or is it the right to marry somebody with certain qualification, like they have to be single, they have to be adult, etc.? Does Loving spell these things out? Because it seems like if they did, we could narrow the focus of this debate.

If the right turned out to be a right to marry anybody you want, then couldn't the laws against polygamy be declared unconstitutional at some point?

Do marriage statues have to address the reason for their own existence or the motive for why lawmakers made them? It seems like before we could say what the reason for government involvement in marriage is, we'd have to look at what the arguments were when they began. Do you know anything about that? Has marriage always been a legal issue in this country? If not, why was it made a legal issue?

Yeah, Christianity does tend to morph to accommodate the culture it finds itself in, but I think there's a limit to how much it can change and still be Christianity. Unless there's a limit to it, "Christianity" is a meaningless word. But there are already branches of Christianity that accept same sex marriage and see nothing wrong with it, so I don't think Christianity would have to change any more than it already has.

At 4/02/2013 9:11 AM , Blogger DagoodS said...

No, Sam, Loving does not specifically spell out what “right to marry” means, it states: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” And nothing more.

This is fairly common when it comes to “rights.” For example, you have the right to free speech, but opinions rarely specifically state what that speech will be—they leave it up to the individual. Same with right to practice religion. Further, rights are commonly restricted when a legitimate State purpose is provided. Your right to free speech does not extend to yelling “Fire!” in a movie theater, for example. Nor does your right to practice religion extend to using peyote in religious practices.

The same way a “right to marry” can be restricted upon a stated legitimate state purpose. Consent, for example, or to not defraud. At the moment, the state would need to articulate a legitimate state purpose for restricting incestual marriages or polygamy, and it is very likely the Supreme Court would grab on to those purposes to restrict such marriages. (Whether it should is a different question, of course.)

I would always recommend people debating on the right to same gender marriage read three opinions:

Loving v Virginia (allowing right to inter-racial marriage)
Lawrence v Texas (prohibiting sodomy criminal law. Read Scalia’s dissent, it is scathing!)
Perry v Schwarzenegger District Court opinion (the case currently being decided in the Supreme Court)

These will give a very, very good grasp of how rights interplay, and where the court is headed.

When discussing the reason behind laws, we look to the laws themselves. What areas do the laws address? What area does it not? Are there other laws addressing the claimed purpose? For example, If I claimed Driver’s License law’s purpose was to provide everyone with identification, to counter this one could point out there are certain physical and mental requirements to obtain and retain a Driver’s license directly associated with the ability to drive. That there are other laws providing for identification without an ability to drive.

The purpose behind a driver’s license law is more closely associated with ability to drive than identification (even though a driver’s license does provide identification.)

Marriage laws affect the rights/privileges between two (2) people regardless whether they have children, will have children or have no children. There is nothing within the marriage statue about children whatsoever. Another statute—the family law statute—deals with one’s rights/privileges as a parent regardless whether one is married to the other parent.

If Marriage laws do not deal with having children, and other statutes do, it is very difficult to argue any purpose behind Marriage laws having to do with children.

At 4/07/2013 12:49 AM , Blogger Charlie said...

Hey philochristos, I'm Nur-Ab-Sal from DDO. I was wondering what you thought of this article:

At 4/09/2013 5:12 PM , Blogger Sam said...

Hi Charlie.

I have mixed feelings about it. On the one hand, it seems ridiculous for this whole debate to center around the definition of a word. Words are defined by their use, and they change meaning over time as people begin to use them in different ways. It doesn't seem right to deny somebody a right that's so important to them just because of a quibble over the meaning of a word.

On the other hand, when you consider the substance behind the word, as Tim understands it, I think he makes a good point. Tim is making the point that a union between a man and a woman is a special and unique kind of thing, and a union between same sex couples is not the same type of thing. I think he's right, but I don't know how to prove it other than to point to the obvious natural teleology of our gender differences, which doesn't seem to carry much weight with people.

So although I sympathize with Tim's thought or his conclusion, I don't totally agree with the way he's trying to argue for it.

At 4/19/2013 2:26 PM , Blogger Edward T. Babinski said...

Sam nice discussion of "eyewitness" question on another blog recently.


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