Thursday, July 12, 2012

On the Minnesota Anti-Equality Amendment: 5 Wrong-Headed Arguments

In recent years, there have been numerous attempts to prevent same-sex couples from having equal access to civil (legal) marriage. One popular strategy has been to try to use ballot initiatives to revise state constitutions to define marriage as being "between one man and one woman." A measure of this sort passed here in Oklahoma a few years back, one was famously passed and then overturned in California, and another passed in North Carolina earlier this year.

In November, Minnesota will vote on a similar ballot measure. This one strikes close to home. My best friend, who is gay, lives in Minnesota. I have many close relatives there, including my cousin Jake, who is gay. If this measure passes, people I love will not merely be denied access to marriage. More seriously, the state will symbolically marginalize them.

Conservatives routinely point out that marriage is one of the bedrock institutions--perhaps the bedrock institution--of society. They're right. And to be excluded from participation in such a bedrock institution amounts to being told that you don't really fit, that you don't really have a place at the table. It's one thing to remain single by choice. It's something else to be forced into that choice because society declares that, by virtue of who you are, you have no right to take part in our culture's basic social unit.

So, why do people think this is a good idea?  To write discrimination and social marginalization into the very constitution of your state, you'd better have good arguments. I've heard many arguments, but are any of them any good? I want to consider here a few of the most popular and explain why I don't find them any good at all.

1. "It can't be marriage because marriage is by definition between one man and one woman. To call a same-sex relationship a marriage is like calling a car a duck."

This was a favorite argument of Rick Santorum on the campaign trail. The idea here is that "marriage" refers to a certain kind of thing, and that same-sex partnerships just aren't that kind of thing. Now I don't want to get into a lecture about the philosophy of language here, but it's important to note that terms are used in different ways. Not every term refers to just one very specific sort of thing.

I suppose we can all agree that "marriage" refers a relationship of some sort. But what sort? Well, actually, the answer to that has changed over time. In some times and places, the marital relationship has been mainly proprietary: a husband "owns" his wife, especially her sexuality, so that he has excusive rights to use her body for sex. From that standpoint, to insist on gender equality is to redefinied "marriage": if spouses are equal they can't have that kind of relationship. Does that mean that, since in the past marriage was proprietary, today's marriages aren't really marriages?

Of course not. Our concept of what sort of relationship can qualify as a marriage has changed. "Marriage" is the kind of term that can weather such changes, because it's a more flexible term than the name for a particular species of animal, such as "duck." 

So what sort of relationship do we have in mind today when we use the term "marriage"? Here's one common understanding: marriage is a relationship in which two people who love each other in a romantic way join their lives together into a committed, intimate, and enduring partnership in which they vow sexual fidelity and promise to care for one another even when times get tough.

Notice that this understanding doesn't include making babies. And that's important. Because we allow elderly people who can't have children to get married. And we allow infertile couples to get married. If a young bride-to-be has to have a radical hysterectomy three months before the big day, we don't demand that she and her fiance call off the wedding. They can still get married, because marriage is about a certain kind of relationship that the two of them can have even if babies will never be in the picture--a relationship characterized by love and fidelity and mutual care and partnership in life's joys and sorrows.

And guess what? Two men can have that kind of relationship. So can two women. And this point leads to the second bad argument against marriage equality, namely...

2. "If two men are allowed to get married, then pretty much anything goes. We'll have to let Farmer Joe marry his sheep."

Aside from being insulting to Farmer Joe, this argument is a classic case of the slippery slope fallacy. To put it bluntly, Farmer Joe can't have the kind of relationship described above with a sheep. If your reason for extending marriage rights to same-sex couples is that they can have the kind of relationship that heterosexual married couples have, then there is no slippery slope. Likewise, an adult can't have that kind of relationship with a child, so we don't have to worry about opening the door to pedophelic marriages. The slipper slope argument is just dumb, and most people know it.

So, are there any better arguments? How about this one:

3. "Marriage between one man and one woman is the way God wants it."

Really? How do you know? Because of how you interpret the Bible? If so, then it's because you read the Bible in a way different from the way I do, and because you attach a different sort of religious authority to the Bible than I do. Or maybe you ascribe to the Roman Catholic Church's development of natural law theory as applied to human sexuality. If so, I think this approach elevates natural law higher than the law of love in a way that doesn't reflect the priorities of Jesus. Maybe you disagree with that. Fine.

But that's the point. The idea that God wants things a certain way is a sectarian religious idea, based on a controversial worldview. We live in a society in which freedom of religion is constiutionally guaranteed, and in which the Constitution declares that there will be no establishment of religion by the government. That is, the government is not supposed to take sides in religious disagreements by, in effect, basing public policies on one religious community's convictions and then requiring that everyone else live by those policies. Your religious freedom--your freedom, for example, to refuse to marry same-sex couples in your church--depends on the kind of separation of church and state that prevents the government from imposing on all of us public policies that reflect the religious convictions of some.

Some people, however, argue that the majority can impose its values, whatever their source (religious or otherwise), at least sometimes. I agree. But the sometimes is important here--because the majority can't legitimately impose its values in ways that truncate the rights and equality of the minority. And this leads to the fourth argument I want to consider:

4. "Restricting marriage to heterosexual couples reflects the values of the majority of Americans, and there's nothing wrong with that so long as no one is being treated unequally under the law. And under the traditional laws, everyone has the same rights as everyone else to get married. They just have to follow the same rule, consistently applied, that it be to someone of the opposite sex. There is no discrimination here."

This argument is such a clunker that I wouldn't bother with it at all were it not for one simple fact: the argument was put forward in all seriousness by Minnesota Congresswoman Michele Bachmann while she was running for the Republican presidential nomination.

So why is this argument so bad? Because there is such a thing as sexual orientation. Most readers of this blog post are likely to be straight, so let me ask you this. Suppose there were a law that restricted marriage to same-sex couples. Now, you aren't even remotely attracted to members of the same sex, and you never will be. If you're in a loving relationship, it's with someone of the opposite sex. If you're not, then one day you might be--and it will be with someone of the opposite sex. It will never be with someone of the same sex. So, this law says that because of your sexual orientation, none of your romantic, loving relationships will ever enjoy the legal recognition and legal rights (more than a thousand federal benefits, by the way) that come with marriage. That's available only (on this hypothetical law) to your gay and lesbian neighbors.

You really want to say that this isn't legal discrimination? If, because of something outside your control, you are legally denied a social good (legal support and rights for your intimate partnerships) available to others...well, that's the very definition of legal discrimination.

And so we're led at last to one final argument:

5. "Legalizing same-sex marriage is bad for children."

But since I just recently attacked this argument here (and in a more philosophically rigorous but less accessible way here), I will simply say this: The children who are now being raised by same-sex couples would surely benefit from the stabilizing effects of marriage. Marriage, conservatives argue, provides the kind of loving and stable context ideal for raising children. They're right. And same-sex marriage will therefore be good for those children being raised by same-sex couples. And since I really don't think any children who would otherwise be raised by loving heterosexual couples are going to be dragged out of these homes and thrust into same-sex homes should same-sex marriage be legalized, I don't see how legalizing same-sex marriage could effect those kids. The other kinds of arguments rely on nothing but empty scare tactics that accuse gays and lesbians of being predators of children--and somehow suggest that access to marriage will be used as a weapon in their predatory schemes. Such arguments are nothing but empty and vicious slander, insulting to all the compassionate and decent gay and lesbian persons I know, and should be dismissed as such. 
Are there other arguments for writing marriage inequality into Minnesota's constitution? Yes. Some are worse than these. Some are offered with more extensive intellectual and scholarly sophistication--which means it takes a lot more work to figure out what the argument really is and how it should be evaluated. When I've made the attempts (such as here and here), I've found them to be unconvincing. But (unless I've missed something glaring--have I?) the five arguments above seem to more or less touch on the main reasons for opposing same-sex marriage offered in the public square.
If that's right, then the public square has little good reason to oppose same sex marriage...and Minnesotans should know what to do on voting day.

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