It is said that justice is equality, and so it is, but not for all persons, only those who are equal.
--Aristotle
In overturning the California voters' ban on gay marriage, the state's high court argued that homosexuals are a special class, somewhat similar to blacks and women, and deserve special judicial scrutiny for the protection of their rights. At the same time the court insisted that gay marriage must be allowed because gays deserve, no less than anyone else, the equal protection of the laws.
This argument is dubious on two counts. First, blackness and femininity are outwardly identifiable characteristics. Homosexuality generally is not. True, some homosexuals adopt exhibitionistic ways of walking and talking which perhaps serve as a kind of signal to others similarly inclined. But gays can "pass" for straight in a way that blacks can't typically pass for white or women for men. Moreover, blacks were slaves and suffered historical oppression in a way that neither women or gays can match. So the idea that these groups are the "new blacks" is an insult to blacks. Finally whether there is an innate disposition to homosexuality or not, it's hard to deny that homosexuality constitutes a choice and a lifestyle. Whatever the orientation, one still has to choose to act on it. By contrast, blacks and women don't have any choice because race and gender are not a lifestyle.
Now let's turn to the issue of equal protection. Clearly this means that people who are similarly situated should be treated in the same way. So men and women, blacks and whites, straight people and gays, all have the right to vote, the right to speak their mind, and the right to marry. But gays already have the right to marry, just like the others. They have the right to marry adult members of the opposite sex. What they want, however, is the right to marry members of the same sex. This, however, is not a right enjoyed by anyone else. In other words, gays are not asking to be treated the same as everyone else. They want special rights that no one else claims or enjoys. They want to rewrite the definition of marriage.
Put the matter another way. States, acting through their representatives and reflecting the values of the voters, have the constitutional authority to define what marriage is. Traditionally marriage requires: a) two persons b) both of them adults of legal age c) unrelated to each other and d) one male and the other female. Now here are some interesting possibilities. A 10 year old demands the right to marry, charging that the age requirement discriminates against him. Or a fellow wants to marry his sister, contending that the incest prohibition violates the equal protection clause of the Fourteenth Amendment. Or a Muslim seeks four wives, asking why polygamy among multiple "consenting adults" should not be allowed the same legal status as the traditional two-person arrangement. In more imaginative scenarios, a fellow might want to know why the marriage definition is so species-specific. This guy wants to marry his dog on the grounds that "I love my dog and my dog loves me." Why don't all these people have valid equal protection claims under the constitution?
The point here isn't that gay marriage is indistinguishable from polygamy or child-marriage. Rather, it is that gay activists want to dislodge one of the definitions of marriage but retain all the others. They want to move one of the goal posts but not the rest. But how can one part of the marriage definition be discriminatory under the laws while the other parts are not? If the male-female requirement violates the equal protection clause, so must the other requirements which also exclude classes of people. If gays are a special category, why aren't Muslims and Mormons also a special category? It seems that gay activists want a form of "equal protection" for themselves but not for other groups.
Neither equal protection nor antidiscrimination is a real issue here. Judicial tyranny is the issue. Isn't it interesting how even the most naked imposition of power must make the pretense of having justice on its side?
Reader Comments ( Page 1 of 34)
1. "A 10 year old demands the right to marry, charging that the age requirement discriminates against him. Or a fellow wants to marry his sister, contending that the incest prohibition violates the equal protection clause of the Fourteenth Amendment. Or a Muslim seeks four wives, asking why polygamy among multiple "consenting adults" should not be allowed the same legal status as the traditional two-person arrangement. In more imaginative scenarios, a fellow might want to know why the marriage definition is so species-specific. This guy wants to marry his dog on the grounds that "I love my dog and my dog loves me." Why don't all these people have valid equal protection claims under the constitution?"
The big thing here is consent. In all of your examples save one, there's a problem with consent or a health risk. Consenting adults should be allowed to marry; it's somewhat flawed to claim gays are seeking a redefinition when it's more that they are arguing the definition can include and should have included them in the first place. For the most troubling of your examples, I am not sure the Muslim women in that example are really giving consent or are exactly capable of giving consent; their religion treats them like livestock. But it's no simple issue.
Your use of slippery-slope argument against gay marriage is weak. Everyone isn't going to run out and bang sheep because two adults who happen to be of the same sex can commit to one another.
J at 2:20PM on May 19th 2008
2. you said it yourself, states determine their own definition of marriage. California has determined that same sex marriages are legal. How is this tyranny? How is it a naked impostion of power?
Tyranny would be the federal government telling a state they can only determine there own standards if the federal government agrees with them, by say passing bogus constitutional amendments.
If you disapprove of same sex marriage don't do it, otherwise why Do you care?
tmo at 2:25PM on May 19th 2008
3. THERE IS NO PALESTINE
THERE WILL NEVER BE
GOD BLESS ISRAEL AND THE UNITED STATES ...
PALESTINIANS ARE TERRORISTS ..THIS IS WHY THE TERRORIST IS BACKING THEM UP !!!THEY ARE EVIL FILTHY PEOPLE ...!!!
OBAMA
IS
A
GARBAGE
FILTHY
LIAR
WHO
CANNOT
BE
TRUSTED
ALL
MUSLIMS
ARE
VOTING
AND
SUPPOTING
HIM
ANY
OF
YOU
NAIVE
AMERICANS
WHO
WILL
SUPPORT
HIM
WILL
REGRET
IT
AND
WE WILL
ALL PAY ..
OSSEIN OBAMA
IS
A
MUSLIM
BY
BLOOD
AND
THE
ONLY
REASON
HIS
WIFE
IS
PROUD
FOR
THE
FIRST
TIME
IS
BECAUSE
HER
MUSLIM
HUSBAND
IS RUNNING ...
THAT
UGLY
WOMAN
DOESNT
EVEN
DESERVE
TO
HAVE A
POSITION
AS A BUTLER
IN THE WHITE HOUSE ..
AND AS FOR OSSEIN OBAMA
I WOULDNT
EVEN
LET
HIM
RUN A MACDONALDS
NOT UNLESS RUN
THIS COUNTRY ...!!!
WAKE UP AMERICA
DONT RUIN THE COUNTRY
BY VOTING FOR FITH !!!
MARLEN at 2:37PM on May 19th 2008
4. gawd dinesh you are a fucking idiot!!!
gay people just are the way they are! it is not a choice. and they should not have to try to pretend to be straight to appease homophobes like you.
if being a woman was seen by some people as "unnatural" or "immoral" should i try to act more masculine just because they don't like it? NO
and outward appearances have nothing to do with whether people should be fit into a specific category.
while people with trisomy 21 tend to have physical characteristics that are identifiable some people with other mental disabilities may outwardly appear like people without any mental disabilities or illnesses.
does that mean they should not receive special benefits or accommodations because they do not demonstrate an outward appearance that we can associate with their disability?
and don't try to insinuate that i'm am saying homosexuals have some sort of mental illness, because i'm not. i'm simply making a comparison to illustrate your shitty argument.
Richelle at 2:41PM on May 19th 2008
5. I think it's very telling that DD chose a Muslim to be his polygimst and not a Mormon. Can't cast christianity in a bad light now, can we?
Ryan Anderson at 2:42PM on May 19th 2008
6. marlen you're a dumbass too
Richelle at 2:42PM on May 19th 2008
7. Why are you wasting your time arguing with the seminarians: Renzo, preteristvision and Robert? You are arguing with 1800 years of theological dogma that is fighting for relevance in the present day.
rara avis at 2:44PM on May 19th 2008
8. Conservatives are seething with anger that they are losing the fight on gay rights. Elected Republicans are mad because they can no longer use their gay bashing as effectively as they once did. How many times did Republicans (when they controlled Congress) bring up the gay marriage debate in the Senate? FOUR times. And all four times their attempt to force a constitutional amendment failed.
What has changed the heart of most reasonable people is knowing someone who is gay. Most of us do. A brother, sister, uncle, whomever. Even neocon Dick Cheney supports reasonable gay rights - no doubt because his daughter Mary is a lesbian.
And when the GOP no longer has gay people in it, then I will be against gay marriage. Until then, I have no problem with it. And good luck at eradicating from the party - no doubt people like Dinesh and other fanatics would enjoy that.
David S. at 2:57PM on May 19th 2008
9. Dear Rara Avis? If you follow my posts, I poke fun at both sides. I know it is impossible to prove, but I am genuine, and find it bad Karma to lie. At any rate, The Atheists, as well as the 'Christians', are equally joy-less, I am sure you will agree. And I, am not, as you will also note. Once the central tenet of DD's current post is annhilated (usually in ten posts or less) this argument devolves into the same polarized factions trotting out the same tired arguments. Nothing is gained on either side, and by sheer inertia, the argument dies out. If you read what I post on a personal level (outside of the classroom observations) you will find that I advocate a moving forward, something I am sad will maybe NEVER occur.
NAMASTE,
Robert
P.S. Dear Dinesh- Is this the best you can do? This is just your previous post re-painted (and poorly at that, the cracks are showing).
Robert at 2:59PM on May 19th 2008
10. A more relevant question: Why is the Catholic Church still hiding pedophile Priests from the public? Why hasn't the present Pope fully disclosed his involvement in hiding these pedophiles?
rara avis at 3:10PM on May 19th 2008
11. There's really nothing else to say. Each case demands concent or places offspring in imminent harm through inbreeding. But go into the backwater in the deep south and you can find folks that are clearly married to their own cousins and sisters.
The polygamy case is a little more difficult. If you start to extend marriages beyond two people, with full legal and economic benefits, then where would it end? Theoretically you could have a million people all married to each other, at which point it would be simplier to simply get rid of those benefits all together.
Somber at 3:21PM on May 19th 2008
12. "This argument is dubious on two counts. First, blackness and femininity are outwardly identifiable characteristics."
So do you have a color chart to determine whether a person is black? You know, one of those ones that segregationists used to use to discrimnate against "real" blacks.
And who determines femininity? You? I don't think so.
Once again you take up the cause for your fellow bigots. maybe you should join the KKK.
Oh right, you can't because they wouldn't consider you the right color or religion (Catholics just aren't real Christians you know).
busterggi at 3:26PM on May 19th 2008
13. #2 Personally, I feel if a gay person wants to be as miserable as a married straight person, let 'em.
However, your premise is flawed. Californians voted it to be illegal, not legal as you state incorrectly. Now it will become a ballot intitiative as an amendment to the state constitution. It will surely, and sadly, pass.
bilko at 3:28PM on May 19th 2008
14. Let's play a little game of "Clue-bat":
I'll go first.
Is it Dinesh D'Souza, in the steaming pile of fail that he calls a blog, with the slippery slope fallacy?
It is? Wow...I'm good at this game.
Asylum Seeker at 4:00PM on May 19th 2008
15. http://evolutionfacts.blogspot.com
AN ATHEIST NO MORE at 4:14PM on May 19th 2008