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February 24, 2005

Releasing the Pressure

The same-sex marriage discussion has gotten heated, 'round here, and since that's neither my intention nor my desire, I'm going to respond carefully to the latest remarks from two people and then step back from this round. My current schedule doesn't allow me the liberty to continue swinging at irresolvable differences.

First, a response to Gabriel Rosenberg's latest offering:

[Katz] seems to feel I was too focused on the word "consistency" and thus I missed his other points. I thought I had responded to his main point that prohibiting same-sex marriage cannot be both sex discrimination and sexual orientation discrimination.

To be honest, the consistency angle was one that I didn't intend to be central to my "Whatever Works" post. However, in my rush to get to work, I thought I'd made it sufficiently secondary. Perhaps I did not. Be that as it may, part of my thinking when emphasizing SSM proponents' concentration on that angle for my subsequent post grew from the following in Rosenberg's initial response:

In his post Katz explains why he disagrees with one of the theories Balkin presented, but never why any two of them are mutually incompatible.

My hurried a.m. deficiencies as a rhetorician notwithstanding, it seems to me that one would think the thing I actually explained to be the main point. But I'll take the blame for the misunderstanding. However, I won't take the blame for Rosenberg's reaction to my reaction to it:

This is a rather juvenile and disgusting attack. He accuses same-sex marriage proponents of being inconsistent, of doing "whatever works" to achieve its goals, of not standing on any principles, in short of being intellectually dishonest. When I deny those serious accusations I'm told that my powerful reaction might be a sign of insecurity about whether I'm consistent.

Only the first two of my alleged accusations are accurate. I never said that supporters of same-sex marriage don't stand on any principles, nor (in turn) that they are intellectually dishonest (although anybody can be, of course). Indeed, I later said that consistency is only one consideration; furthermore, my "juvenile and disgusting attack" would be nonsensical if I, too, joined the SSM supporters at hand in believing that "the notion of consistency is particularly powerful." Therefore, it doesn't follow that my accusations expanded as Rosenberg has done. (N.B. If one argument for or against something is correct, than consistency with other arguments is moot.)

Here we come to an intriguing point: my second post was not entirely about Mr. Rosenberg, and my first post had nothing directly to do with him. If you go back and read his response to the first, perhaps you'll see, as I do, that the the full brunt of the comments that now so offend him hardly apply to him. His approach to SSM is not identical to Balkin's, differentiated in part by the quality of being more consistent and more logically, as opposed to legalistically, founded. And as I said, the second post was not only in response to him (this is something else that I might have been well advised to make clearer, although I thought the plural language would be adequate.) Yet, Rosenberg goes on to express insult as if everything that I had written in both posts was directly aimed at him:

The initial accusations were insulting. The inference that since I was insulted the accusations are probably true is just stupid.

Yes, that inference would have been stupid if (1) the accusations had been made against him, (2) my response had been directed entirely at him, and (3) my parenthetical quip had actually suggested that my accusations were "probably true." None of those requirements to prove my stupidity are met. But if I won't cede stupidity, I will admit that I should have further explained something about which Rosenberg writes, "I honestly have no idea what Katz is talking about here." In his first post, Rosenberg had written:

Suppose you know a person is attracted to women or in a sexual relationship with a woman. You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female. All sexual orientation discrimination concerns deviation from one's traditional gender roles.

I said that this posits "a scenario in which discrimination is desirable" because in order for Rosenberg to explain why "all sexual orientation discrimination is inherently a matter of sex discrimination," he must imagine a situation in which we want to "classify a person as homosexual." Since he agrees with me that "if one cannot classify the person, one cannot discriminate against him or her on the basis of that classification," he appears to be positing a circumstance in which the ability to classify — i.e., discriminate — is important.

This point does not indicate that I agree with Rosenberg's overall suggestion. I don't know how else to say it, so I'll just repeat myself: one can define orientation without reference to a particular person's sex. Suppose you want to know whether Pat qualifies for a benefit (or a restriction, for that matter) based on sexual orientation. You need to know neither Pat's gender nor that of the people to whom Pat is attracted — only that Pat is homosexual. If you want more detail — whether Pat is a lesbian or a gay man — obviously Pat's sex becomes relevant.

In the case at hand, whether a homosexual is male or female makes no difference with respect to his or her ability to enter into marriage with a person of the same sex. The IRS, for example, doesn't need to know which one of Pat and Nick is the man, just that they are of opposite sex. To say the least, a strange permutation of sex discrimination is necessary in order for the term to cover a state of affairs in which it doesn't matter whether the individual object of alleged discrimination is a man or a woman.

Pace Rosenberg, it is not true that "if a policy discriminates on the basis of orientation it must discriminate on the basis of sex." And as I've already described, going in the other direction, if a policy discriminates on the basis of sex, it does not discriminate on the basis of orientation. This is why I'm not sure how to further the cause of mutual understanding when Rosenberg writes, in response to my statement that the argument "proceeds" from sex distinctions to orientation distinctions, not the other way around:

It matters not whether the discrimination was itself the goal of the policy, which seems very unlikely, or whether there was some other goal with discrimination being used to achieve that goal, which is far more likely to be the case. Either way one discriminates. Katz is making the incorrect assumption that a policy of discrimination necessarily means the authors or advocates of that policy are bigots.

Of course, there's a bit of loose terminology on all sides about whether we're talking licit "discrimination" or "invidious discrimination." And perhaps I could have been clearer that by "goal," I meant to indicate the discrimination as an intended effect, not a side effect. Still, in the totality of the points that I have made thus far in this exchange, the assumption of bigotry is all that's left — not specifically attributing motives on Gabriel Rosenberg's part, or anybody else's, but as a matter of what must be assumed in order to find sex discrimination within orientation discrimination rather than to start with the stated requirements based on gender and investigate the effects. (I apologize for not, myself, pulling together the totality, but I'm running out of available time.)

As for the last two paragraphs of Rosenberg's post, the areas of misunderstanding, on both sides, are too thick and the temper too heated for unraveling to be sufficiently effective to justify the time. It's as if we're looking at two different discussions, in part because I've apparently left too much unexplained, and in part because Rosenberg seems to think himself the main object of my "attack," rather than the broader position to which he contributes.

Posted by Justin Katz at February 24, 2005 7:56 PM
Marriage & Family

How's about this for an analogy: We have the "Pregnancy Discrimination Act" which forbids discrimination on the basis of "pregnancy" (certainly something with *behaviorial* and *choice* elements to it). This norm is largely seen as a subsidiary gender discrimination issue. Why can't sexual orientation discrimination also be seen as a subsidiary gender discrimination issue?

Posted by: Jon Rowe at February 25, 2005 12:08 AM

What is your basis for determination that gay practitioners are a subsidiary gender?

Posted by: smmtheory at February 25, 2005 12:53 AM

JR: Why can't sexual orientation discrimination also be seen as a subsidiary gender discrimination issue?

It can, by any state or national congress that chooses to -- just like they did with the "Pregnancy Discrimination Act". But just because they can, or might want to, is no reason to believe that it (marriage, pregancy) is a matter of self-evident constitutional mandate.

But at this rate, what with your judges thinking they can invent constitutional language out of thin air and mandate anything they wish to in this regard -- it is becoming one, a constitutional mandate, state by state by state. And 38 is the endzone -- game over.

It didn't have to happen this way you know, but everybody wants to be the gay Rosa Parks...

Posted by: Marty at February 25, 2005 8:07 PM

>> You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female.

In this formulation there is a mistaken assumption that heterosexuality is a classification that can be applied unerringly by using as proxy the sex of the person with whom a man or a woman would marry.

The man-woman criterion does not bar a man from marrying a woman who is heterosexual, homosexual, bisexual, or whatever. In such instances it is not possible to classify the sexuality of the woman based on the sex of her marital partner. The woman might declare her sexuality, or others might speculate about it, but the state does not inquire, test, nor classify the sexuality of persons forming marriagable couples. And it has no interest in doing so in the case of unmarriagable couples.

That a man might wish to form a domestic arrangement with another man is an indication that he would form an unmarriagable combination and thus enter an alternative to marriage. Unless the state was granted the means and opportunity to delve into their sexual relations for some reason, even his expressed desire to bond domestically with another man would not determine the sexuality of either man. Self-identification would not be error-free. But the state does not have cause to classify the sexuality of individuals marriagable or not.

In any case, the possibility of classifying an individual as homosexual or heterosexual is irrelevant to state recognition of the social institution of marriage. The man-woman criterion of marriage applies equally to men and to women.

Posted by: Chairm at March 2, 2005 6:22 AM