Thursday, March 28, 2013

LGBT 5: Discrimination

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.


  1. Pretty much in full agreement. And I have to say that I was impressed with the Justices' arguments against the immediate legalization of gay marriage. They raised some pretty key points about how this is a sudden fad with potentially destructive consequences.

    I will say one thing, though. In my opinion, the opponents of gay marriage had already lost by the time the Constitution was written. It was only a matter of time before the culturally embedded "ick" factor weakened enough to let people see that gay marriage was in the Constitution all along. We're a nation founded on Lockean libertarianism, and it's in all of our laws. As Aquinas says, human law exists to teach philosophical virtue to citizens. The philosophical "virtue" we've been taught, though, is a lot different from the kind Aquinas was thinking about.

    1. I think there's probably a lot that could be written about how traditional, Thomist philosophy (or just traditional views in general) could Never jibe with the modern American form of government. Any honest person can see that it's a somewhat futile exercise trying to synthesize the two. Or at least that it's a big uphill battle anyway. And I don't say modern here to mean that there was like a non-modern form of American government. As you pointed out, it was basically founded on a sort of Lockean libertarianism. The country was founded on modern ideals, for all its good and all its bad.

      I will say, and this probably has more to do with the common law than it has to do with America's founding, that there Is a lot in the law that Does work with something like natural law. I pretty much agree with you in principle, but there's probably more nuance than you're giving modern law credit for (you can see Aquinas really clearly in things like the law of war, for example, or in some of our notions of "intent" for crimes, etc.), but your overall point is basically correct, I think.

      And really, it's so strange to hear how people describe "natural law" in a political context today. It's just very weird to see modern politicians appeal to natural law to win votes in 2013 America. It's actually a sort of fascinating thing: the "conservative" position is really quite liberal and quite modern when compared to all of human history. American conservatives (as in, like, constitution waving, bible-believing, free-marketers) are really a very modern, liberal group of people, even if they would never dare use that word to describe themselves.

    2. I think Rank Sophist is overplaying the whole "the Constitution is inherently incompatible with natural law" thing. Instead of saying that the 14th Amendment is libertarian ("Live and let live"), you could just as easily say that it's an example of the cardinal virtue of justice: treating like cases alike.

    3. In Rank's defense, I don't think he's arguing that the Constitution is Necessarily incompatible with natural law. Nor do I think his beef is with the 14th Amendment itself. I may be speaking a little too much for him, but I think he's just saying that the underlying libertarian principles of American philosophy are what will eventually create a society that runs contrary to the natural law. That is, when the highest good is individual freedom, and the sole role of the government is to balance inviolable individual rights with ever-changing consequentialist aims, the (perhaps necessary) result is going to be some strange thing where "gay marriage" is "legalized."

    4. Joe,

      Yeah, that's pretty much what I was trying to say. Also, I agree with your earlier point that our founding laws have a lot of good in them. For example, the limitations on the government's ability to fine without a trial. Or even free speech, as it was originally conceived--which is to say, not as a universal license for obscenity and hate. That stuff isn't counter to natural law, and a lot of our laws are near-direct expressions of natural law. Like you said, the problem is that our core philosophy was doomed from the start to reach the current (absurd) conclusions.

      (And I agree about "conservatives" being liberals. It's very bizarre that our traditionalists are, by and large, very modern.)

    5. I don't know. Feser likes to play the whole "Our current situation is just the gradual playing out of centuries-old philosophy" thing too, but I'm very skeptical. I'm more of a practical guy.

      I think the main reason for gay marriage's increasing popularity is that people have separated sex/procreation from marriage for heterosexuals, and so marriage just seems like a mental/emotional union to them. I think contraception is much more to blame than Enlightenment Era philosophy.

    6. I think the main reason for gay marriage's increasing popularity is that people have separated sex/procreation from marriage for heterosexuals, and so marriage just seems like a mental/emotional union to them. I think contraception is much more to blame than Enlightenment Era philosophy.

      I think Feser may respond by drawing a line from 'Enlightment Era philosophy' to contraception. Even the idea of sex/procreation being separated from marriage would probably be presented as yet more Enlightenment thinking.

      That said, I agree with you to a point. I don't think most people, if you asked them to justify gay marriage or contraception, would respond with something like "Well, according to Locke, we..." Hell, I don't think most could even explain what the Enlightenment was besides giving the most general, pop-up-book concept rundown.

      But to the general attitude of 'most people support gay marriage for ultimately shallow reasons', I'd say yes. There's a lot of 'my friend is gay and LGBT active and he/she screams bloody murder when this topic gets up and takes it personally, so I guess gay marriage is important?' going on. On the flipside, a lot of socons oppose it because 'God said so I'm pretty sure!' and little else.

  2. I should clarify. The movement's opinions are indeed often expressed in terms of Enlightenment ideas, but the those ideas found fertile soil in their minds because their sexual behaviors made them predisposed to accept those ideas.

  3. Yes, although many of my millennial peers love to make the emotional argument, marriage is in essence a question of terms. And terms are tools to identify difference and function.

    Legislating gay marriage into existence by law or judiciary would be tantamount to banning gravity in the United States. On paper it's a feasible concept. Reality begs to differ.

    We're already witnessing this today with marriage as we've whittled away at the concept from where it used to be permanent monogamous unions designed to facilitate mating, procreation, and child-rearing and turned into an often-arbitrary association of two individuals who may or may not like having sex with one another. How does this union benefit society? It doesn't! Only monogamous unions of man and wife provide benefits through children (who fare better under mothers and fathers), and sterile couples who uphold the blueprint (also, it's unfair to penalize sterile couples as most are unaware of the condition prior to marriage) and or adopt and raise children.

    The most outrageous and maddening accusation I deal with when debating this issue is gay marriage proponents claiming I am somehow answerable for the atrocious divorce rate and the high-profile sham-weddings of celebrities and other disasters (they don't decry the single-mother household rate as they don't want to anger a valuable ally). Why should I or any other morally conservative individual be forced to answer for the willful experimentation of the progressives? No-fault divorce is hardly a conservative, much less a Christian, idea.

    The only comfort I take amongst the ignorance of my peers is that the church has been in worse situations before and weathered them. The ultra-conservative Anglican Church in Africa and the similarly dogmatic Chinese churches might just be sending missionaries to the US someday.

    1. LOL: "Legislating gay marriage into existence by law or judiciary would be tantamount to banning gravity in the United States. On paper it's a feasible concept. Reality begs to differ."