Because it's sort of a hot topic right now, I thought I'd mention it. That is, gay marriage and "discrimination" against homosexuals in denying them their right to marry. First of all, this post is not supposed to be some big argument as to why gay marriage is wrong or unconstitutional or whatever. I'm simply using gay marriage as an example of this very popular appeal. Marriage is an enormous topic, and I haven't spent a lot of time developing arguments about marriage on this blog, though I've hinted at them. I will try to get to them later. I was just talking to my friend about this today, and I wanted to get it out there, as I think a lot of the conflict over the current gay marriage debates stem from a misunderstanding here. (For the friend who is perhaps reading this (and I have no idea if he knows this blog exists, though I have a feeling), I mean not to plagiarize any of your points if they come out.) A lot of people have said the following better than I have, but I think it should be said here anyway.At any rate, the basic point made by the LGBT community (and by any card-carrying liberal) about gay marriage usually goes like this: "extending marriage only to heterosexuals is discriminatory against homosexuals because you are denying homosexuals the right to marry one another." They will then usually cite the 14th Amendment (as legal experts and all) and claim that such an action is clearly a violation of it. Now, a lot of people get really tangled up with this. They think, "Well, isn't it true that gay people don't get something that straight people get?"
Even though it seems obvious, I think the power of this sort of argument comes from a couple of places. One, it plays on some emotion that discrimination is not only unconstitutional (or so people think), but that it's just wrong and mean. It plays on the idea that people are just being cruel by discriminating and that they do so because they think gay people are just icky. Two, and most importantly, it subtly begs the question. What do I mean by this? Well, what I mean is this: what marriage is is the only really relevant question that needs to be answered when discussing gay marriage, and defenders of gay marriage, when making this appeal, already assume two homosexuals marrying one another is valid, the real issue in contention, before the debate even gets started.
Put simply, the framing of the issue is all wrong. Gay people are not being discriminated against (at least in this area), nor are they being denied the right to marry. They can marry. They're absolutely free to marry. They, just like any other human being, have to find someone of the opposite sex to marry. Because marriage is necessarily heterosexual. Marriage is just the natural extension of human reproduction. It would be discriminatory to deny a gay man the right to wed a woman (that is, marry) simply because he was gay, sure, but a person is not discriminated against if the state says no one has access to something that isn't real or something that no one can have access to. It's not picking one group and saying "you can't do this thing that everyone has the right to do." Because, as the law stands, everyone has the same right. So long as everyone is equally granted that right (which they are) to marry, there would be no discrimination.
It, for example, would be absurd to say that the state is denying a single man the "right" to marry himself. It's clearly even crazier to say that the state is "discriminating" against people who prefer the single life and masturbation. Because marriage has to have at least more than one person to be anything like marriage. But someone who follows this "discrimination" line of thinking without any real concern as to what marriage is could clearly make the argument. Why do married people (straight or otherwise) get the benefits of marriage, while the state unfairly discriminates against single people?! (I'm sure some asexual people are already making this argument.) Banning a certain race from getting something that all other people get, like marriage, though, would count as discriminatory. If everyone has a right to marry (join together with someone of the opposite sex), and you tell a particular race (or whatever group) of people that they cannot because of their race, you are denying them a thing everyone else has a right to. You would be treating them unequally under the law because they would be forbidden from something that all other people get.
In other words, the "you are denying gay people the right to marry" line is assuming the conflict is resolved before it even gets started; it's assuming that marriage really is just people liking each other a lot and committing to one another. It is assuming that "gay marriage" is actually a thing that people have a right to which can be denied. But whether it is such a thing is the whole thing at issue to begin with! There are usually some responses to this. Like, "who are you to decide what marriage is?!" But once we're at this point, we're recognizing the real issue, wherever it goes. That is, the other side is acknowledging that a meaning of "marriage" is necessary to determine whether a law actually is "discriminatory." And, of course, everyone already knows this going in. Gay people are fighting for a certain thing; they are appealing to some universal or transcendent idea. It would be ridiculous, for example, to say that marriage is scratching your head. Why? Because scratching your head has nothing to do what what makes a marriage what it is. Now, of course a homosexual relationship is closer to marriage than head scratching, but why? What is it closer to? There is clearly an appeal to some universal. And this thing it's closer to is clearly related to sex. And what is sex? It's not just orgasm, whatever it is. It is always necessarily related to the reproduction cycle of the species. This is the reason it's ridiculous to say that a man masturbating at home by himself is "married" to himself (or ever can marry himself), even though he's probably orgasming way more than the average married couple. But I digress. All I'm trying to point out is that the definition of marriage is all that really matters in the debate.
Other times, people will say that society doesn't think marriage is necessarily heterosexual anymore. They take the position that the definition of marriage is somehow democratic. But it's not. You couldn't any more vote that a marriage is a union between two men than you could say a circle has four sides. This is why a lot of those "Marriage, according to X State, is defined as between one man and one woman" laws are kind of redundant. Why would you need to pass a law on this? I mean, I know why; the states are given the right to decide things like this (or so they say), but it really is absurd if you think about it. This isn't a question of a particular state's opinion. We're not picking a state flower. This is a determination of a transcendent metaphysical truth. Now, if someone approaches it by saying that gay marriage really is just marriage and recognizes that discrimination can only really occur when we're talking about real things that certain groups are specifically denied, then we're on the right path. And some people do do this. I don't have any beef with them. I think they're wrong, but they're wrong for various philosophical reasons that I'm not trying to address here. I just get annoyed when people go on and on about discrimination while blindly missing the point of the whole argument. If you want to discuss the underlying philosophy, fine. Just don't play the discrimination card before we've even figured out what's going on.
In other words, this is mostly purely philosophical question, and a lot of the confusion with the law is a result of misunderstanding this philosophical question. Just like abortion is a purely philosophical question. Abortion is sort of a two-fold one really, at least as it concerns American law. One, whether or not a fetus is a person (to get various rights like the right not to be killed), and two, whether or not the mother's rights somehow supersede the fetus' rights. Abortion tends to stay a little more philosophical among average folks (even if they talk past one another), but the courts are basically incapable of addressing the philosophy. They intentionally ignore the major issue in order to follow popular opinion. This is the reason the Supreme Court is basically worthless for things like gay marriage. If it won't address the underlying philosophical issue, the Court is just left to spin its wheels. Which is exactly what it does. The best it can hope to do in this case is say, "Well, we can't define marriage; it's up to the states." But this just pushes the problem over.
This is why I don't like "state's rights" arguments (at least with respect to issues like gay marriage). To appeal to state's rights is often just to delay the inevitable. When the Court does this, it's just playing hot potato. It's waiting for someone else to answer the question through voting (or whatever) instead of dealing with it itself. If it really is truly a transcendent issue of human rights and discrimination, it's not up to the states to really decide. It's not like we're okay with the states deciding whether or not a black person is a human being who has rights. For the same reason, we shouldn't be okay with the states deciding whether or not a fetus is a human being who has certain rights or whether a marriage is just two people liking one another a lot. There are certain basic things the justice system needs to figure out from the get go. What a person is. What marriage is. You can't even start with the 14th Amendment until you answer those questions.
As I said, this sort of argument, that it's "unequal" or "discriminatory" is common in a lot of areas. It's just most common with gay marriage stuff. It really has become annoying, especially in law school, listening to people talk about discrimination against gay people on and on every day. And I swear to God, if I hear someone say "get on the right side of history," I'm just gonna drop out.