Thursday, February 20, 2014

The Bachmann/McDonough Principle of Non-Discrimination

I'm thinking academic blogs might be a good place to toss out first drafts of things that may eventually make it into professional articles. Now may be a good time for that, since I've starting work on a philosophy article that brings together some things I've talked about before on this blog.

As I've noted before on this blog, Michele Bachmann maintains that civil marriage laws restricting marriage to heterosexual couples are non-discriminatory. She doesn't say that it's justified discrimination. She says that no discrimination is going on at all.

Why? Because all persons--gay and straight--face the very same marital opportunities and requirements: all are free to marry someone of the same sex, while none are free to marry someone of the opposite sex.

One section of the article I'm working on will look at an argument along these same lines that was put forward by a philosopher, Richard McDonough, in Public Affairs Quarterly (a rather prestigious journal of political and social philosophy). McDonough puts the main line of argument succinctly as follows:

DSSMs [Defenders of Same-Sex Marriage] want to legitimize the right to marry persons of the same sex...But since no one has the right to marry persons of the same sex, the DSSM's demand for the right to same-sex marriage is not analogous to the blacks (sic) demand for the right to study at the same schools as whites or a woman's demand for the right to vote. 
McDonough goes on to argue--in a gesture towards conservative slippery-slope arguments--that the call for the right to same-sex marriage is much more akin to the call for the right to incestuous marriage or polygamy.

In each case, it is a call for a right that, previously, no one had enjoyed. Granting the right, then, "effects a material change in everybody's rights."

When I talked about Bachmann's version of this line of argument, I said that it wasn't any good. Is McDonough's version of it any better?

Well, it isn't much different, except insofar as McDonough repeatedly drums the claim that "DSSM's, DIMs (Defenders of Incestuous Marriage) and DPMs (Defenders of Polygamous Marriage), are arguing for a substantial expansion in everybody's rights" as opposed to seeking equal rights. He also offers his own analysis of why so many think that same-sex marriage is an equal-rights issue: because the gay community is, he thinks, wanting a new right which has an equivalent function for their community that traditional marriage has for the straight community.

This way of putting things, of course, is premised on a kind of segregation of gays and straights into separate communities--which is to my mind a highly problematic way of putting things. But let me set that point aside and explain exactly why this really is an equal rights issue, not an "equivalent" rights issue.

There are, in fact, two distinct ways that one can discriminate legally against a class of people. The problem with both Bachmann an McDonough is that they only recognize one of these ways. Hence, their principle of non-discrimination is artificially truncated.

Here, in brief, is the Bachmann-McDonough Principle of Non-Discrimination (hereafter, BM POND):

When laws subject all persons to identical restrictions and opportunities, no persons are subject to legal discrimination. 

But all of us intuitively know that this principle is false. Suppose that a city is considering a free public school lunch program. Imagine that the following two programs are proposed:

Free Lunch for Non-Redheads: All public school students will be provided with a free cafeteria meal featuring one entree and a beverage--except redheaded students, who must pay for their meal.

Free Peanut Butter Sandwich Lunch for All Students: All public school students will be provided with a free cafeteria meal featuring a peanut butter sandwich and a carton of milk. Students who want anything other than a peanut butter sandwich and milk must pay for their meal.

Now consider eight-year-old Joey--a lactose-intolerant redhead with a life-threatening allergy to peanuts. The first proposed program discriminates against him explicitly--by identifying a class of people to which he belongs, and overtly denying members of that class access to the good that the program makes available to others.

But the second proposed program discriminates against Joey, too--just not in the same way. The first program is overtly discriminatory. The second is what we might call formally discriminatory: It makes a good available, but in a form that is not equally accessible to all. The entire class of school kids with peanut allergies is excluded from access to a social good--namely a reasonably healthy and filling lunch--which the program makes available to everyone else. If Joey avails himself of what the program offers, he risks death. As such, he cannot get from the program the good that the program is making available to his classmates.

That's discrimination. It's this sort of formal discrimination that the Americans with Disabilities Act is designed to redress. If a government program makes a good available to the public--but the good is physically located on the third floor of a building without elevators--then people in wheelchairs are being discriminated against. The discrimination is not overt. The policy does not explicitly say, "Everyone can have this good, except people in wheelchairs. They are excluded." But that fact is hardly comforting to someone in a wheelchair who wants access to the good others can enjoy but has no way of getting it.

BM POND only recognizes overt discrimination. It completely ignores formal discrimination in the law. Under the peanut butter sandwich program, Joey faces the identical restrictions and opportunities that everyone else enjoys. He has the opportunity to eat a peanut butter sandwich for free, and he is restricted from eating anything else without paying for it. But there is a fact about Joey which means that the restriction restricts him in ways that it doesn't restrict others, and the opportunity which is a real for others is no opportunity at all for him.

Bachmann and McDonough are correct that traditional civil marriage is not overtly discriminatory. But they are wrong in concluding that it is not therefore discriminatory. Traditional civil marriage law discriminates against persons with a homosexual orientation by offering marriage only in a form through which they cannot access the key social goods that heterosexuals can access.

In case it's not obvious what that key social good is, let me spell it out. Heterosexuals in our society are not only free to form an intimate romantic partnership with someone they are sexually and romantically interested in, but they are free to have that partnership legally recognized and bestowed with a range of legal rights that are otherwise much harder to receive, and in some cases impossible to receive. The official recognition by the state also communicates a broader social message--an announcement of the intent to establish an enduring union and an expectation that the broader society will view the loving couple as a family unit.

Of course, heterosexuals might seek marriage for reasons other than to get legal and social standing for their intimate romantic/sexual partnerships. They might enter a "sham" marriage to sponsor some person they don't care about for immigration--and when the authorities find out that the two people involved are not in fact pursuing an intimately romantic and sexual partnership, they'll get in trouble. They court fewer legal risks if they marry some filthy-rich 90-year-old who sexually disgusts them out of a desire to inherit a ton of money.

But it is acquiring legal and social standing for an intimate romantic/sexual partnership which has become the distinctive special good for which marriage is prized today. It is for this that people generally get married.

A restriction of marriage to heterosexual pairs affects heterosexuals far differently than it affects gays and lesbians. Such a restriction bars heterosexuals from marrying a certain class of people with whom they cannot experience this social good anyway--and thus does nothing to reduce their access to this distinctive social good. By contrast, gays and lesbians are barred from marrying those with whom they can experience this social good but are free to marry those with whom they cannot. Thus, they are decisively excluded from access to the social good by the form in which the marital institution is made available.

Expanding marriage to include same-sex partnerships erases this inequality. Keeping the restriction in place is legal discrimination. Whether such discrimination can be justified is a different question. But there is no doubt at all that it is discriminatory. Those who say otherwise are working with an artificially truncated understanding of when legal discrimination exists.


  1. I appreciate these insights into the nature of the arguments. It's easy to fall for statements at face value and the idea of something being formally discriminatory is a helpful one.

  2. One (possibly spurious) issue that might be raised in peer review is whether this would be sexual discrimination or sexual orientation discrimination. If it is sexual discrimination, but not sexual orientation discrimination, then it might still be said to be non-discriminatory in regards to sexual orientation. This matters in terms of judicial philosophy since sexual discrimination has a definite place in the middle tier of scrutiny under the Equal Protection Clause, whereas sexual orientation protection might still end up lower, within the domain of rational basis, or higher, within the domain of strict scrutiny.

    The reason marriage discrimination might be claimed to be sexual discrimination is because anti-gay marriage laws essentially make it so that men aren't allowed to marry men (regardless of orientation), while women can, and that women aren't allowed to marry women (regardless of orientation), but that men can; and that all men and women of any orientation are allowed to marry someone.

    Thus, the counterargument to your article might be that overt sexual discrimination is a better accounting of the discrimination than formal sexual orientation discrimination.