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 4 of 34)
46. How can gay marriage threaten anyone? And I don't mean moral outrage, because people can choose to be "morally outraged" at just about anything.
I know a lesbian couple who has been together for 25 years, without benefit of marriage. Yet in my state, if one of those women were to die, the family of the deceased could literally take everything out from under the living spouse. It happened once already. The family had disowned the deceased, yet when he died suddenly and without a will, the family took everything in the couple's house. The only reason they didn't take the house is because they couldn't afford the mortgage payment. The court LET this happen.
Yet in this state, a 13-year-old girl can legally be married to a 38-year-old man if her parents approve. That happened too. And the court let it happen.
Gay people are just like anyone else. There are bad ones and promiscuous ones, and there are bad and promiscuous straight people. If a gay couple wishes to make their relationship official with marriage, how will that hurt anyone else?
And for the people droning on and on about the "sanctity of marriage"? Fix hetero marriage, and then you can complain. Sex before marriage, adultery, and divorce are outlawed, with the former two punishable by death. A widow can only remarry if it's to her dead husband's brother. A divorcee automatically is guilty of adultery if they remarry, no matter what the circumstances of the divorce, and can be stoned to death for adultery. Tell me, fundamentalist Christians, will YOU be the one to stone your mother to death if you catch her cheating on your father? Will you be alright with yourself being stoned to death if it's discovered that you weren't a virgin when you got married?
Then, and only then, can you complain about the violation of the "sanctity of marriage" under Christianty.
Emmy at 6:42PM on May 19th 2008
47.
Emmy, what year are you living in??
what country do you live in??
wait for it, here it comes:
WHAT medication are you on?!
And Emmy thinks she knows something about Christianity at 6:49PM on May 19th 2008
48. "Scientifically speaking, homosexuality does not appear to be a 'lifestyle choice' anymore than gender or skin color. As such, it would appear to warrant the same type of equal protection."
This argument -- i.e. if a tendency is innate or genetic, then the activities it causes one to desire to engage in are entitled to equal protection -- is seriously flawed.
First, and most obviously, race and gender aren't defined in terms of predilections or activities, while homosexuality is. A woman who never realized she was a woman would remain a woman, however she chose to act, or desired to act; a homosexual who never desired to have, or who never engaged in, sex with a member of the same gender simply wouldn't be a homosexual. In other words, the defining characteristics of these classes of people aren't in the same category; with respect to race and gender, desire and activity is irrelevant, while with respect to homosexuality, desire and activity are essential.
Second, no one is talking about outlawing homosexual activity -- which is, if your argument's premise is correct, what is 'natural' here -- but homosexual marriage. Marriage is not 'natural' in the sense you're using the term, so even if your premise is correct, your conclusion simply doesn't logically follow.
Third, it is certainly arguable that aggressivity and pedophilia are genetically determined predilections. In other words, some people are naturally 'wired' (a horrible metaphor, but let's go with it for the moment) in such a way that they feel the need to act aggressively, or feel a sexual attraction to children. So the issue isn't "Is x natural?" since I've just provided examples of naturally occurring predilections that are clearly not protected by the Constitution, and which we think people should control whether they're 'wired' that way or not, but "Is there a Constitutional prohibition on procscribing x?" So even if, as it seems to be the case, homosexuality is genetically determined, the issue isn't one of preventing homosexual activities, or homosexual relationships; rather, it's whether homosexuals have a Constitutionally protected right to marry. This clearly isn't the case, at least at the moment. It's not to be found in the plain text of the Constitution, and it's not to be found, AS THE RATIO DECIDENDI (as opposed to obiter dicta) in any precedent (e.g. in Loving v. Virginia, the notion that we have a right to marry was not part of the ratio decidendi). You may think that the Constitution SHOULD protect such a right, and in the future it may, though if it does, it will, I hope, be a result of legislation, and not of judicial fiat.
Renzo at 7:06PM on May 19th 2008
49. Anyone else notice how little traction DD's posts get when the 'crazies' are all away sleeping it off? (Yawn! I think I'll go take a nap...)
Robert at 7:17PM on May 19th 2008
50. Mr. D'Souza posted what I've been saying for years. That gaysexuals & lesbosexuals have the same rights to marry as other citizens. Just pick someone of the opposite gender.
van at 7:20PM on May 19th 2008
51. And on that note, I will sleep. But fear not, I will return- if for nothing else than to see whether or not the 'crazies' return, to generate multitudes of 'hits' on this blog. I have another bet going. LOL.
Robert at 7:20PM on May 19th 2008
52. What ever the courts and legislatures do in this country in regards to homosexuality does not affect me. But on the other hand, whenever any class or group of people are relegated to less than equal status (blacks, women, homosexuals), I feel we are not honoring the constitution. When we have second class citizens we do not have freedom, we have a hoax called freedom.
Making a declarative statement (your hope) that atheists should move out...forget it. This is my country as well.
JefFlyingV at 7:23PM on May 19th 2008
53. Renzo:
Your argument that a woman whom does not realize she is a woman would still remain a woman do nothing to disprove the fact that a gay person is a gay person whther they realize it or not. In fact, it reinforces the idea that reality need not our knowledge or consent!
A Jew, having never practiced the religion or having ever been to Temple would still be a Jew. He or she would be a Jew because they were born to decendants of the Tribes of David.
Likewise, a gay person is gay because they feel an attraction to those of the same sex. If such a person were living in a society where such things could not be discussed or tolerated, they would still be gay. There have been and still are many whom give in to societal pressures and live 'straight' lives complete with families etc. But, that does not change how they feel or who they are.
Keith J. Mohrhoff at 7:29PM on May 19th 2008
54. Keith: "Your argument that a woman whom does not realize she is a woman would still remain a woman do nothing to disprove the fact that a gay person is a gay person whther they realize it or not"
That was not the point of my argument. The point was that 'gender' and 'sexuality' aren't even close to being in the same category, since a woman would be a woman HOWEVER she chose to act, or WHATEVER she desired, while a homosexual could not, BY DEFINITION, be a homosexual independent of his or her actions and desires.
"...a gay person is gay because they feel an attraction to those of the same sex. If such a person were living in a society where such things could not be discussed or tolerated, they would still be gay."
Again, this misses the point. I'm not talking about those who feel a desire, but choose to repress it. Such a person would be gay, obviously. I was referring to the fact that the categories we're comparing -- gender or race with homosexuality -- are QUALITATIVELY different, since the former categories are NOT defined in terms of activity or predilection, while the latter clearly is; as I suggested, it is a contradiction to say, "John has never had sex with a man, and has absolutely no desire to have sex with a man, but is a homosexual." There is no similar contradictory statement concerning the actions and desires of members of any particular race or gender (i.e. there is no proposition of the form, "S is gender G[or race R], and has no desire D or has never engaged in activity A" that is contradictory).
Renzo at 7:48PM on May 19th 2008
55. "marriages busting up because girls dressing like ho's and openly flirting with older, married men...."
Oh right, because the older, married men couldn't possibly have any responsibility in the decision to sleep with the younger, scantily clad girl.
Alyssa at 7:57PM on May 19th 2008
56. More hot steaming stupid from D'Idiot:
"But gays can "pass" for straight in a way that blacks can't typically pass for white or women for men."
Holy crap, what a load of hooey. For one thing, there are many, many African Americans of fair skin who often made it a point to 'pass' in an effort to gain rights/acceptence. There was a whole market for products aimed squarely at this audience.
"Moreover, blacks were slaves and suffered historical oppression in a way that neither women or gays can match."
Tell that the the homosexuals in the WWII camps. You know what happened to most of them when the camps were liberated? They were thrown IN JAIL by their "liberators." After all, they were still sodomites, and maybe those nasty Nazis weren't all wrong.
"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."
Dude, do they have any Psychiatrists at Stanford? Maybe you might want to talk to one of them. Maybe two if you really need a second opinion. But 'homosexuality is a choice' went off the books, oh, maybe 25 years ago among reputable medical professionals? The only ones that say otherwise are quacks and are roundly debunked/mocked.
Seems like poor little Homophobic/Sexist/Anti-Semite D'Stupid just can't get that man-on-dog thing out of his brain. Keep on using it, D'Inosaur. It worked wonders for Sick Rantorum and Mike Hickabee.
T.Brough at 7:59PM on May 19th 2008
57. Renzo:
The Nazis KILLED people of Jewish descent whether they recognized themselves to be Jews or NOT. To say that "gender or race are QUALITATIVELY different from homosexuality would also have to apply to them."
Therefore, a Jew (or Muslim for that matter) who chooses to could easily 'pass' for Christian and therefore shouldn't be afforded any protection against discrimination? LUDICROUS!!
It is time for America to stop it's litany of human rights abuses. A good place to start would be to stop finding excuses whereby discrimination becomes acceptable.
Keith J. Mohrhoff at 8:00PM on May 19th 2008
58. By your logic Dinesh, those who fought laws against whites and blacks marrying were asking for 'special protection' because they wanted to change the marriage laws to suit only them. You also conveniently omit that the California legislature, the elected body that represents the people of California, passed a bill to allow same sex couples to marry. It was vetoed by the Governor. Would you be okay with gay marriage if state legislatures approved it? By your argument, you should be. I wonder.
Theo at 8:10PM on May 19th 2008
59. "A good place to start would be to stop finding excuses whereby discrimination becomes acceptable.
Keith J. Mohrhoff at 8:00PM on May 19th 2008"
Keith, thanks for that. One of the best short summaries of all of the discussions here that I've ever seen. And it applies to both sides.
brandon at 8:52PM on May 19th 2008
60.
Alyssa, scantily clad clothing was meant for the bedroom.
It went to porn magazines, college posters and mags and to the beach and
finally into the office, the street, the neighborhood---
It's everywhere!
Your comment intimates that you think it's just fine and dandy for girls and women to be scantily clad all of the time.
This certainly doesn't help these men who have their tongues wagging and their eyes roving.
Give a man an inch and he'll take a mile, unless he's SERIOUSLY trying to keep his self-control.
Which, used to be a much easier virtue many decades ago in this country. Now, it would seem that the only thing that matters is sex, sex, sex.
There's no balance there and really, the women could control this situation if they really wanted to. But, in this culture, to women, sex IS control and they abuse it to no end.
I would have thought that you'd be supporting other women in working for the cause for proper dressing and reducing the public strip tease.
But, I don't know, maybe it's okay with you that your husband screws all the eye candy he can get when he's away from you?!
Just a thought, anyways.
Stop.Dangling.the.Carrots in Our Faces \\\\\\\ at 9:09PM on May 19th 2008