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February 17, 2005

Whatever Works

Although many proponents of same-sex marriage seem to believe that opponents' reasoning is merely cover for bigotry, the arguments against are internally consistent. Not so the other side. Even just the thesis of a post by Yale professor Jack Balkin illustrates the point: "Viewing [five legal theories] together one can see the choices that courts will have to make in upholding the rights of same-sex couples." Openly, here, it is assumed that the courts ought to take the goal of "upholding the rights of same-sex couples," not applying the law, as is the duty of their branch. Also openly, the emphasis is on methods to reach that goal, not a unified argument for why it can or should be reached.

The additional commentary that Balkin provides for each point is important to read, but consider a trimmed points one and two:

1) Sex equality. It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so. The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties. ...

2) Sexual orientation discrimination. The ban on same-sex marriage discriminates against gays and lesbians in their choice of spouses.

Balkin states that the second option has the advantage of being "completely honest about what the problem is": identical treatment of a group. The difficulty that this presents, intellectually, is that homosexuals aren't discriminated against as a group. If the objective of marriage is to bridge the gap between sides in the single most fundamental human division — men and women — thereby joining potentially procreative couples, then homosexuals have exactly the same range of choices as heterosexuals. (It's worth noting that that wasn't the case with anti-miscegenation laws, which discriminated even in the range of options.)

Balkin says that one disadvantage of option two is that a court implementing it would have to add orientation to the list of suspect classifications, but that isn't enough; the court must also define marriage as something other than a pairing of men and women. To do so, it would have to make marriage "about" amorphous concepts like love, commitment, and care. This is where, pace Balkin, the decision would create "obvious problems for state prohibition of incestuous and polygamous marriages." Essentially, Balkin is counting on the judiciary, having created a right to same-sex marriage based on reasoning outside of the law itself, to discard much of that reasoning in order to adhere strictly to the letter of the law when further questions arise.

Option one is different mainly in that it approaches the issue as a matter of individual rights and is targeted more closely to the central question of any such ruling: what is marriage? As Balkin admits, the "disadvantage of the argument is that it uses sex equality doctrine to uphold what most people would say is really discrimination on the basis of sexual orientation." Essentially, to grant homosexuals the right to marry according to their orientation, such a ruling would label marriage as an inherently — definitionally — sexist institution.

What's worrying about this approach is that it avoids the group emphasis, perhaps as a means of avoiding the obvious rejoinder that men and women are equally free to marry people of the opposite sex. It suggests a particular man/woman who wishes to marry a particular man/woman and cannot, even though a particular woman/man could. In doing so, it also ultimately redefines marriage as a prerequisite, adding the view of marriage not as a broad social institution, but as a matter to be defined from the point of view of the individual. Again, only mere law stands between such a ruling and further expansion of marriage.

Of course, when the goal is to find a right, the consistency and the consequences are of secondary concern... if that.

Posted by Justin Katz at February 17, 2005 7:32 AM
Marriage & Family
Comments

I couldn't have said it better myself.

And just look: "(1) It violates sex equality to tell a woman she cannot marry another woman when a man could do so. The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties"

I wonder why this distinction is acceptable under Abortion law, but not under marriage? Fathers have no reproductive rights as long as only Mothers can abort their offspring.

Posted by: Marty at February 17, 2005 11:13 AM

I couldn't have said it better myself.

And just look: "(1) It violates sex equality to tell a woman she cannot marry another woman when a man could do so. The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties"

I wonder why this distinction is acceptable under Abortion law, but not under marriage? Fathers have no reproductive rights as long as Mothers can abort their offspring.

Posted by: Marty at February 17, 2005 11:15 AM

Marty -
no, to use the same reasoning from the post,
there's no discrimination.
If the father got pregnant, he would have
the right to choose whether or not to
have an abortion.

Posted by: Robert at February 17, 2005 1:16 PM

Justin,

Great post, as always (where's Michael from www.thirdofthemonth.com on this)?

Gentlemen (the estimable Marty & Robert, and I do mean "estimable;" I think both should start their own blogs, particularly Marty - he is prodigious, and good),

As the father of three boys (with a fourth on the way), my wife and I were talking about the kids, their differences, etc.

One thing she told me (she's been tired, you can imagine) about having this one, and the others:

"I felt this big weight in me and a feeling of tiredness. One thing I could feel with no doubt: this is NOT ME."

Meaning (sorry this post is a little cliche'd and long) that, whatever else our little ones are, they are most DEFINITELY not my wife (ie-they are separate beings).

Sorry, guys, I thought this post was going to read a bit more succinctly and clearly than it has.

I just thought I had to write this in lieu of arguments (and, parents will know exactly what I mean) made by the "pro-choice" (choose WHAT, exactly?) groups in denying the "separateness" of the life in the womb in question.

Whew!

Thanks for being patient, guys.

Keep the faith, Justin, and the rest of you.

Aaron

Posted by: Aaron at February 17, 2005 5:35 PM

I think the biggest problem with a lot of conservative thought on same-sex marriage is that it has already fallen for the liberal-version-of-reality. Namely, that homosexuality and heterosexuality are the same, and consequently, homosexuals deserve the same rights in every way. The root of the problem starts there, not with discrimination of rights. Homosexuality is not equal to heterosexuality, neither should it be undestood or legitimized as such. That´s why the rights don´t apply in the same way. Homosexuality is a state of developmental dysfunction. Instead of society bending backwards to submit to every homosexual dysfunctional demand, it needs to rethink the basis for these claims in the first place.

If you posit that "there is nothing wrong or dysfunctional with homosexuality and that it equals heterosexuality," you cannot coherently argue that homosexuals do not have a right to everything heterosexuals have. The problem is this is false. It is a legitimating and equalizing homosexist tenet, not reality.

It is the same with obesity. A lot of obese children and adults are bullied and demeaned because of their weight problem. This is not right. However, the minute you have fat activists, not only complaining about this bashing, but claiming that there is nothing wrong or unhealthy with being obese (even extreme obesity), but, on the contrary, that it should be upheld as an example of health, society has fallen prey to a lie. And the minute people who say being obese is patently unhealthy are sued for a hate speech/thought crime or are labeled "full of hate," then you know that things have really gone awry.

(blogged at http://alessandrab.blogspot.com/2005/01/why-homosexists-are-wrong.html)

I also think SSM is already a slippery slope. If you legalize homo adoption of children, it becomes contradictory to say you can't have SSM. Homo activists have been changing the laws regarding adoption and now they want to change it for marriage as well. The problem started way back then. First legitimizing homosexuality, normalizing it, then partner benefits, then adoption, now marriage.

Posted by: Alessandra at February 18, 2005 10:46 PM

Thanks Aaron, you're too kind -- but i've been there done that. Don't let my wife catch you talking that way again!

I'm perfectly content as a marriage mercenary, in such good company as Ben Bateman, smmtheory, and the many other esteemed names that occasionally make camp under the flag of Justin the Great.

Posted by: Marty at February 19, 2005 11:32 AM

Great post, as always (where's Michael from www.thirdofthemonth.com on this)?

Vacation.

.Although many proponents of same-sex marriage seem to believe that opponents' reasoning is merely cover for bigotry, the arguments against are internally consistent. Not so the other side.

Justin, I won't belabor our irreconcilible differences on the SSM, but I don't think that opponents' arguments are any more or less internally consistent than proponents' arguments. Because Balkin lays out five different reasons that SSM should be allowed does not make these less internally consistent. Barring of SSM has a sex-discrimination component, a sexual orientation discrimination component, an equal rights component, a privacy component, etc. The question before the courts is, are any of these claims valid?

In the same way, current SSM opponents argue that upholding current legal marriage definitions has a biological component, a traditional component, a religious component, etc. In their eyes, the question before the courts is, are any of these claims valid? You cannot argue against both SSM and polygamy without broaching to separable subjects, which nonetheless are internally consistent.

Can you please explain to me, more succinctly, how the five points Balkin laid out aren't internally consistent and why the arguments against SSM and polygamy are consistent?

Posted by: Michael at February 22, 2005 10:45 AM

One of the inconsistencies in Balkin's arguments Michael is that the proponents have no method for determining whether or not a person actually belongs to one 'group' or another 'group'. As well, the laws are not specifically aimed at one particular gender. For the most part, the laws state no person shall marry another person of the same gender. That's not discrimination against one gender specifically.

Posted by: smmtheory at February 22, 2005 1:20 PM

One of the inconsistencies in Balkin's arguments Michael is that the proponents have no method for determining whether or not a person actually belongs to one 'group' or another 'group'.

But how is that an inconsistency? With what is it inconsistent? Just because you disagree with the position doesn't make it inconsistent with any of the other reasons Balkin listed why SSM should be allowed, especially if you believe that marriage is a choice made between individuals and not groups. It might not be consistent if you disagree with that view of marriage choice, but few if any SSM-proponents do. Balkin's points are internally consistent.

Posted by: Michael at February 22, 2005 2:24 PM

Michael said:
"especially if you believe that marriage is a choice made between individuals and not groups"

The inconsistency is the insistence that marriage is about individual rights, but those rights are supposedly based on being in a 'group' which is not physically distinguished from any other random 'group'. The basis for that so-called suspect group is that it is a social grouping rather than a physical grouping, but he recognizes that argument four on the basis of targeting a social group is the least likely argument to succeed.

Posted by: smmtheory at February 22, 2005 4:52 PM

The inconsistency is the insistence that marriage is about individual rights, but those rights are supposedly based on being in a 'group' which is not physically distinguished from any other random 'group'.

But that isn't an inconsistency. The only reason that there is any inconsistency is because people like you refuse to believe that sexual orientation isn't a "random 'group'". To someone like me it is no less physically distinguishable than holding a religious belief. How is being Christian any more physical than being gay? And yet somehow, the religious are a protected group.

Posted by: Michael at February 22, 2005 5:15 PM

Well, religion has the minor advantage of being specifically mentioned in the Constitution.

Specifically, I looked at "choices" one and two, and they are inconsistent because, if marriage is an individual right, it is not group right. Approach the "orientation" discrimination question from the perspective of an individual: the individual homosexual is not being discriminated against because he or she has the same exact range of options for entering into the institution of marriage as a heterosexual of the same sex has.

Posted by: Justin Katz at February 22, 2005 7:37 PM

Specifically, I looked at "choices" one and two, and they are inconsistent because, if marriage is an individual right, it is not group right. Approach the "orientation" discrimination question from the perspective of an individual: the individual homosexual is not being discriminated against because he or she has the same exact range of options for entering into the institution of marriage as a heterosexual of the same sex has.

I'm sorry, Justin, but this is absolute BS. Marriage is an individual right that is being unduly burdened by membership in a group. That is, of course a gay man can choose to marry a woman but it is not reasonable to expect him to do so or to even want to do so. This leaves no practical choice for gays. There is absolutely nothing inconsistent about it, unless you are nit-picking the fact that, RIGHT NOW, sexual orientation isn't a protected class; the only practical difference between Balkin's 1 and 2 is that 1 doesn't require granting civil rigths protection to homosexuals.

Posted by: Michael at February 22, 2005 10:22 PM

Gays do have choices — a whole broad range of choices — about how to conduct their relationships. If they do not wish to enter into marriage, as marriage, with the basic import that it has always had, then that is a choice that they have.

Posted by: Justin Katz at February 22, 2005 10:34 PM

Gays do have choices — a whole broad range of choices — about how to conduct their relationships. If they do not wish to enter into marriage, as marriage, with the basic import that it has always had, then that is a choice that they have.

I'm done with this, because we are just going to continue to disagree with each other. But what you've conveniently avoided is my point that Balkin's arguments are only inconsistent if you prescribe to your view of the nature of homosexuality and the kind of civil equality homosexuals should be awarded. If you prescribe to notion that a homosexual could never, by his nature, enter into a worthwhile unitive relationship, defined and described by marriage, with a member of the opposite sex, then this argument is completely consistent; it is as consistent as any argument against SSM.

Posted by: Michael at February 23, 2005 12:16 PM

Michael said:
"How is being Christian any more physical than being gay? And yet somehow, the religious are a protected group."

First proponents equate the homogamous practice with race, then they next equate it with religion. If that is not inconsistency, then I suspect that maybe some of us don't understand the definition of inconsistent.

Although I have to hand it to you Michael, equating it with religion is at least a little more intellectually honest, as it has all the earmarks of being a religion, i.e. proselytizing, soap-box preaching, fellowship services, etc.

Posted by: smmtheory at February 23, 2005 12:58 PM

First proponents equate the homogamous practice with race, then they next equate it with religion. If that is not inconsistency, then I suspect that maybe some of us don't understand the definition of inconsistent.

I agree. Some of us don't understand the definition of inconsistent. One can make analogies to distinct situations without being inconsistent. We do it all of the time. Jesus did it. He compares the repentent sinner with a lost coin that has been found as well as with the prodigal son who returns back to his father. He was not being inconsistent. He was merely drawing on multiple parallels to help illustrate and teach.

Posted by: Gabriel Rosenberg at February 23, 2005 1:15 PM

Gabriel,
Perhaps you can point out the analogy that Jesus used when he clarified the definition of marriage as being man and wife not man and husband or woman and wife.

Posted by: smmtheory at February 23, 2005 4:35 PM

smmtheory,

There is none as far as I know. What does that have to do with inconsistency?

Posted by: Gabriel Rosenberg at February 23, 2005 5:10 PM

"Gays do have choices — a whole broad range of choices — about how to conduct their relationships. If they do not wish to enter into marriage, as marriage, with the basic import that it has always had, then that is a choice that they have."

In 1950, this would have read:

"Negros do have choices . . . about how to conduct their relationships. If they do not wish to enter into [same-race] marriage, as marriage, with the basic import that it has always had, then that is the choice that they have."

Posted by: Res Ipsa at February 23, 2005 7:10 PM

RI, that was an easy one back then, because race is easy to define and something that never changes. Not so "orientation".

Michael: If you prescribe to notion that a homosexual could never, by his nature, enter into a worthwhile unitive relationship, defined and described by marriage, with a member of the opposite sex,

If your proscribe to that notion, then the burden is on you to prove it. But so far, there is no "test" of orientation and neither do marriage licenses even ask the question. But I myself have seen otherwise (ok ostensibly) happily married men and women suddenly "go gay", and likewise i have seen happily gay men and women "go straight" and marry and have kids and pets and white picket fences with nary a test tube of donated sperm in sight.

To be blunt, i do not think this is something that you cannot do. I beleive it is something you think you cannot do. Which i can relate to actually, because i never thought i could either. Praise God i was wrong.

Posted by: Marty at February 23, 2005 7:22 PM

If orientation is not fixed, then could you have a sexual relationship with a man? Could you live in a long relationship with another man, given this all about choices and thus your desire to be with a woman is a choice.

Posted by: res ipsa at February 23, 2005 10:41 PM

Gabriel,
It has as much to do with inconsistency as what you said has to do with consistency. The only consistency I see from SSM proponents is their tendency to argue in circles. If they receive a response that should effectively counter their argument, they say something similar to "That's nonsense because it has no bearing on such and such...", and when that argument is countered they respond in the same manner again about some different line of reasoning that has no bearing on the counter-argument. It continues on like that until the whole thing gets back around to the original argument. All the while, they see no inconsistency in their arguments because they use what they believe are these fabulous analogies.

In this case, it started out with marriage is an individual's right and some think people are being discriminated against because they belong individually to what they believe should be a suspect group completely ignoring the fact that they happen to be an individual in the wider group with which they receive the same individual rights as every other member of that group. The argument is ostensibly that they do not actually belong to the wider group because they "can't" have that mystical connection with a member of the opposite sex that Jesus purportedly stated could only be had with a member of the opposite sex. Pardon me for not understanding what is NOT inconsistent about that.

Posted by: smmtheory at February 23, 2005 11:18 PM

smmtheory,

Actually I don't see what's inconsistent about that, but never mind. My conversation with you started with you saying that if one could draw analogies with both race and religion and that was not inconsistent then some of us do not understand the definition of inconsistent. I agreed with you. I believe that some of us do not understand the definition of inconsistent. In particular I believe that you do not understand the definition of inconsistent.

What I said bears directly on the topic of consistency. I was making the point that one could draw analogies to two different things and still be consistent thus countering your claim that same-sex marriage proponents were once again being inconsistent.

Posted by: Gabriel Rosenberg at February 24, 2005 12:04 AM

RI, of course i could, if i allowed myself. Just as i think you could, if you would allow yourself.

Posted by: Marty at February 24, 2005 1:05 AM

Gabriel said:
"In particular I believe that you do not understand the definition of inconsistent."

Of that, I had no doubt, though your opinion is not really any better than mine. But if you think you can argue with any more consistency than any other SSM proponent, be my guest. Try starting with what excludes gay practitioners from being in a group of others of their same gender. Is it genetic, religious, or both, and how would you qualify your answer as being correct.

Posted by: smmtheory at February 24, 2005 1:51 AM

OK. I believe they are in a group of others of their same gender. All gay men are male. All lesbians are female. If your question is how do we define "gay" that gets a little complicated (and it is a question I don't find particularly relevant), because not only do different people use it to mean different things by the word, even the same people will often use the word in two different ways depending on context. I will try to go with the defintion you seem to be using at this time by your use of the word practicioner. Thus let us say a gay man is a man who seeks an intimate relationship with another man. There are probably some genetic impulses behind the drive to do so, but again I don't see that as relevant so if you do not believe that is correct I'll concede the point for the sake of argument. I believe either way the decision is one that it is extremely important to the individual and forms part of their identity, much like religion. I base this view on (1) conversations with gays and lesbians and (2) extrapolating from my own situation with my wife. I hope this answers your questions.

Posted by: Gabriel Rosenberg at February 24, 2005 9:02 AM