Sunday, October 08, 2006

Althouse: A Rational Basis for Banning Gay Marriage?

Ann Althouse, law professor and right-leaning blogger, asked her readers to answer a rather interesting question this past Thursday, "What is the rational basis for banning gay marriage?" It is sad, I think, that the overwhelming majority of responses were irrational and woefully ill-informed. In fact, they read like a catalogue of logical fallacies and stereotypes. Homosexuality was compared, in turns, to incest, bestiality, polygamy, alcoholism, murder and other criminal behaviors, etc. The homosexual "lifestyle" was described as self-indulgent and compared to gambling and drug dealing. I would probably manage to be outraged at these arguments if I hadn't heard them so many times before. It's actually disappointing, really, that no one's managed to insult us in some sort of original or creative manner.
So, instead of getting my dander up in an outraged rant at the absolute stupidity and irrationality of some people, let me take this opportunity to inform a bit. Here's a little rational dissection of SOME of the gay marriage/homosexuality mythology.

Gay marriage will have unintended or negative consequences.
Arguments from consequences are inherently illogical and they rarely lead to good decision-making. We can "imagine" any number of potentially devastating consequences arising from gay marriage, but that would lead us down a slippery slope, don't you think? We can also probably "imagine" many benefits from gay marriage, like increased business for wedding industries, but it's also illogical to argue from these benefits.

The gay lifestyle is somehow inherently less moral/productive/whatever than the heterosexual lifestyle, so we have a vested interest in privileging the heterosexual lifestyle.
Excuse me for my ignorance, but what precisely is this gay "lifestyle" of which you speak? Is this the one where we have lots of sex? I'd like to sign up for that! Seriously, people, there's NO SUCH THING as the gay "lifestyle" just as there's no one straight "lifestyle."
Also, whose standards will we be using to determine whether this imaginary gay "lifestyle" is moral or immoral as compared to the equally imaginary heterosexual "lifestyle."? There are hundreds of moral/ethical systems to determine morality. As these systems are based on assigning value/meaning, none of them are "rational" per se. Also, picking one for the purpose of answering this question would run us right smack dab into that separation of church and state/freedom of religion problem with which our founding fathers insisted on saddling us.


Marriage is traditionally between one man and one woman, a religious institution, etc.

Marriage (traditionally) was an economic/social contract carried out by two families with the husband and wife having little or no choice in the matter. Also, traditionally, marriage was restricted to people of the same religion, class, race, etc. It was also a contract by which ownership of a woman was transferred from her father to her husband, with the woman having no standing as a unique legal person under the law. Although religions often ruled on how people should behave toward their spouses just as religions ruled on all interpersonal relations, only recently in human history did marriage become a valued religious institution carried out by religious ceremony/rite. Even more recently, the state became involved in regulating private contracts including marriage, supplanting the church and opening the doors for interfaith unions. Even more recently than that, women gained the right to be considered legal persons both within the institution of marriage and without and to make the decision to marry of their own accord without coercion. And more recently still, people gained the right to marry someone of a different race.
Currently, marriage is predominantly a legal contract between two people establishing their legal/financial obligations to one another and the rights and benefits due them on the part of the state as well as their relationship to any child produced during the marriage. Religious institutions perform only those marriage ceremonies that are ratified by the state, with religious language included in the ceremony to honor the religious obligations an individual couple may choose to undertake. However, the state imbues the rights/benefits of marriage without consideration of religious standards and often without the participation of any religious institution.
Also, upholding tradition without consideration for its usefulness in modern society or whether it upholds or violates fundamental human rights is preposterous. Traditions we're better off without: slavery, women as property, indentured servitude for paying off debts, public executions, segregation, the monarchy, property requirements for political participation, etc.

Marriage is for procreation.
While marriage and procreation are related, there is no one to one legal relationship. First, marriage rights are granted to couples regardless of their ability or willingness to produce children through normal biological means. In fact, the legal benefits of parenthood as established through marriage apply even to children that are not the biological offspring of one or both parents and to those children produced through artificial means. Second, gay couples have children. Perhaps not together through normal biological means, but shouldn't this put them on the same legal footing as heterosexual couples who are incapable of natural procreation? Third, many married couples are obviously incapable of procreation at the time of marriage, often due to advanced age. Should we then deny them the right to marry or do we acknowledge that marriage has other non-procreative purposes that are as important if not more so?

If gay marriage is to become legal, it should be decided democratically through the vote or through the legislature, not through "judicial fiat."
It always amazes me how little people know of our system of government. Democracy is not just the ballot box or the legislature. Democracy includes basic structures that protect the many from domination by the few and the few from oppression by the many. Democracy also includes a founding set of principles generally agreed upon that are enshrined in a constitution and used as the measuring stick by which all laws are judged. Democracy also includes a generally agreed upon separation of powers by which each part of a government has a legally established role in the conduct of public life. Without these things, democracy is little more than rule by an often vicious and frequently unenlightened mob.
In our system of government, it is the judiciary's role to determine if any law meets the standards established by the United States Constitution or the constitution of a particular state. Some of the greatest moments of progress for the country were sparked by judicial decisions that certain laws did not meet the standards of justice established by our constitution. Abolished by judicial fiat: the poll taxes and literacy tests intended to prevent African-Americans from voting, segregation, prohibitions on birth control, prohibitions on private sexual acts between consenting adults, forced sterilization of the mentally challenge or disabled, laws abridging the right of freedom of speech, state constitutional provisions requiring a person to be a Christian to hold elected office, denial of equal educational opportunities to women, etc.
Currently, we in the gay marriage movement hold that prohibitions against gay marriage are unconstitutional as they violate the separation of church/state, violate first amendment prohibitions against establishing an official religion or legislating based on religious justification alone, violate our fourteenth amendment rights to equal protection under the law, etc. It is the judiciary's role to decide the answers to the consitutional questions we pose, not the people's or the legislature's or the executive's.

Why not civil unions or domestic partnerships?
These lesser institutions would establish gay people as separate from and not equal to heterosexuals. They would legally enshrine second class citizenship for gay people and perpetuate prejudice against us. Such a precedent must not stand.
Would you accept being legally defined as "less than" a full and equal citizen of the nation of your birth or as "less than" a human being entitled to the rights, freedom, and basic dignity to which all humans are entitled? Would you accept being told that you are inherently less than someone else based on such a paltry and irrelevant distinction?

4 Comments:

Blogger Canardius said...

i would say that the separation of church and state was only intended by the founding fathers as a means to avoid state controlled church, and not religious influence on the new political state. Many of the fathers were deists; while not thinking God would ever show his face here for a time, they did not suppose He could be safely ignored.

As far as I recall, matrimonial unions came about as the way the variious religions got realistic when they didn't pin salvation on celibacy. To do that means [a] strong eschatological strains that don't win converts with all that doom-and-gloom, and [b] no new generations to be born into the religion. So, the religion realizes that it has to live with marriages and put up with that much materialism and focus on stuff to do here [all that next world focus turns off the instant gratification human].

If Antony won at Actium, things would be different. We may have been on an eastern model that would not link marriage with procreation. Ptolemy II married his sister, but did not procreate with her. Alas.

As it is, I think a lot of christians think of marriage in terms of its religious connotation rather than a civil one. Civilly, it is a legal contract terminable by either party entering into it; religiously it tends to be seen as a triangular man-woman-god matrix. And who can tell off the Almighty?
It was He who told us to be fruitful and multiply, and the act itself is usually as close as we get to emulation of our Creator [by creating the body of a newborn].

If it weren't to procreate, would we need marriage? Would we get by with business partnerships or communes? I agree that just to support it because it's "tradition" is not convincing [but I like traditions like monarchy!].

When he was censor, Q. Caecilius Metellus (consul, 206 B. C.) made a famous speech on marraige, encouraging it for the sake of Rome replacing the kids Hannibal was killing. And then he went on himself to marry a reeelly reely young girl old enough to be his daughter. Who gave birth to his son, Quintus Caecilius Metellus Macedonicus (consul, 143 B. C.) and his younger bald brother, Lucius. AS the U.S. gets alot of its law from Rome, this is a point as to why our laws see hetero marriages how they do.

when I was younger it was put to me in terms like this: it makes sense for men and women to couple since they were made to fit together. Like keys fit into locks. [By this line of thought, keys attain their purpose in life by being used in locks; in themselves they aren't much. Apparently neither are locks.] The story went on to say that the coupling of man and woman opened the door to god by letting us in on creation of life. And that same-sex coupling could not do this. [well, not until adoption came along, but that's not extending the genetic bloodline of the parents...]

I tended to use the term "civil union" for that reason. If we could all think of the word "marriage" as purely secular, maybe the christians could deal with it.

Of course, your use of the equality clauses of the amendments of this country was ironic, descended as you are from tribes that the government still doesnt treat equally.

3:49 PM  
Blogger Melinda Barton said...

Actually deists believed that G-d was not involved in morality. I don't know if they thought he could be ignored, but they did believe that morality/ethics (which were human and not G-d given in their minds) could not be ignored.

Different founding fathers felt differently about the separation of church and state and how it should be interpreted. However, the standard constitutional interpretation is that laws based solely on religious grounds without a compelling nonreligious justification violate the separation of church and state.

As for the religious evolution of matrimonial unions, I was giving a general outline simply because each religion is different. Christianity is the only currently practiced major religion (that I know of) that once pinned celibacy to salvation, that considered marriage materialistic, or that focused so strongly on the afterlife rather than the current world (Islam also has a bit of that although not as much). In Judaism, voluntary celibacy was long considered morally repugnant.

As for how Christians perceive marriage, this is all well and good for the rules governing marriage within the church. (These rules differ between denominations with some supporting gay marriage but unable to perform gay marriage ceremonies per se due to the civil laws.) But I think we go waaaaaaay too far when we use a solely and sect-specific Judeo-Christian definition of a one man/one woman marriage to control secular civil marriage rights without a concommitant secular justification and in the presence of compelling secular arguments against.

Whether we technically "need" marriage or not is a sticky wicket. That we "want" and that we honor marriage regardless of procreation is obvious in the many cases of people who marry without the willingness or ability to procreate. I think that marriage (as a voluntary contract between two individuals) continues to play a vital role in the lives of individuals and societies. Creating new structures simply to prevent equating homosexual relationships with heterosexual ones is inherently bigoted and discriminatory. Unless we're going to force all those who cannot or do not produce children naturally to accept "civil union" rather than marriage. (Would we need a time limit before which you have to have procreated or your marriage gets downgraded?)

As for the key and the lock, I seriously disagree. I think we humans are fully functional on our own but union does provide a quality of life different from if not always superior to that available to single people. The choice/preference should be up to the individual.

Also, you neglect to take into account the fact that biologically homosexual people are completely incapable of having any deep romantic feelings for members of the opposite sex. So, while we can participate in incomplete and unfulfilling marriages with members of the opposite sex, embracing the full experience of marriage as a voluntary union of souls based on romantic love and respect would require marriage to a member of the same sex at minimum.

As for the equality clauses and my ancestors, the 14th amendment does not now nor has it ever applied to Native Americans enrolled as members of a particular tribe due to "tribal sovereignty." Citizenship for Native Americans is derived solely from their tribes' treaty with the government. Obviously, I think "sovereignty" is nonsense considering its real world applications and that the 14th should be applied universally.

1:16 PM  
Anonymous Rhea said...

Thanks for this interesting post. Here in Massachusetts we have legal gay marriage and I am still stunned that it ever happened with all the defensiveness around heterosexual marriage, as if it is the best way to go. I mean, how much violence, neglect and abuse have happened under the umbrella of heterosexual marriage? In my opinion, it's far too easy for heterosexuals to get married. They even do it on a whim, like in Las Vegas, fer godssakes!

11:19 AM  
Blogger Melinda Barton said...

Rhea, thanks for the comment. I have to say, I was invited to give my first speech on gay marriage on May 1, 1997 and I'm deeply disheartened that we haven't made more progress since then. There's something severely wrong with the fact that I can go to Vegas and marry a man that I don't even know but can't marry the woman I love.

12:02 PM  

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