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 5 of 34)
61. Once again Douche D’louza’s logic is revealed to be childishly flawed within the first two pages of comments but I’m beginning to wonder just what the true purpose of this blog is. Douche was supposedly trained as a debater, in fact he is very fond of reminding us about his supreme debating skills, and everyone knows that in order to debate effectively one needs to anticipate the rebuttals to their arguments in order to counter them.
I know this is a blog and not a debate and therefore there is no back and forth between Douche and the readers, but in his various posts you can still see attempts to anticipate the nature of future rebuttals to his argument and address them in advance, but why is he so bad at it?
Surely, at this point he can’t think that we are so stupid that we will not pounce on the flaws in his reasoning. Can he? Can we really be expected to believe that in his argument were he imagines a future in which ten year old lovers petition the government to allow them to marry that he never figured in the idea of consent and that 10 year olds cannot legally consent to such a thing?
How about the animal lover? Neocons like to characterize liberals as having some very strange ideas such as placing a higher value on the lives of animals than those of humans, so how does this fit in with the fact that since an animal is incapable of consenting to a wedded union with a human, liberals would view an attempt by a human to marry an animal as another level of animal abuse?
If we were to believe that Douche’s objections to gay marriage were merely one of semantics what would that tell us about such a person? Is there anyone out there who does not believe that Douche’s objections to gay marriage is not so much a matter of legal semantics as much as it is an affront to his Christo-fascist sensibilities?
That stated, surely a supposedly smart guy like Douche must know that though there are two possible aspects to marriage that may or may not be combined; The legal and the religious. He must also know that a union sanctified by a wedding ceremony at a place of worship will not be recognized as a legal marriage unless it has also been sanctioned and registered by the state. And most assuredly he must also know that a couple can have their union sanctified and registered by the state without undergoing a religious ceremony and that in such a case the couple will be legally recognized as married.
If we assume that Douche knows all of the above and also that that the separation of church and state is codified in the first amendment, he must also know that the US government does not and cannot recognize marriage as a holy union. The first amendment in a sense guarantees the right of religious people to put the cherry of a holy ceremony on the top of all the legal benefits derived from what is essentially and necessarily a secular change of personal civil status.
If one were to also consider the fact that the equal protection argument was often the rational used to ensure that gays “retained” (and not given) all the other rights enjoyed by heterosexuals that pretty much suggests that Douche is being dishonest at best and divisive at worst when he argues that the equal protection argument for gay marriage is a hoax. (I’m not even sure the word “hoax” applies, perhaps he meant fallacy)
Of most interest to me is the idea that Douche and all these other neocon pundits must also know that no religious institution can be forced to perform a ceremony that it deems sacrilegious and that there are still churches in this country that will not and cannot be legally compelled to perform a mixed race wedding ceremony. Why do they never mention this? Because they realize that there are a lot of religious people out there who believe that churches will be compelled to perform gay marriage ceremonies and disabusing them of this notion will take a lot of the wind out of their argument against the legalization of gay marriage.
I still believe Douche is a moron but know I really believe that his true mission in life is to be divisive so that the neocons can keep sticking it to us.
rabidmccain at 9:05PM on May 19th 2008
62. Renzo; "Again, this misses the point"
Seems like everyone misses your points. I wonder which end the problem is on.
Ryan Anderson at 9:02PM on May 19th 2008
63. Keith, you're confused about the much debated concept of "Jewishness." It at once comprises a people, a religion, a culture, etc. Clearly, what you are getting at only holds under certain interpretations (e.g. religious beliefs and practices), and not under others (e.g. a people). In this sense, a 'religious' Jew is defined in terms of beliefs OR practices (and sometimes in terms of both), while, say, a Jewish person as such is defined in terms of ethnic background (these categories are not, of course, mutually exclusive, though they are obviously conceptually distinct). Now, the former is qualitatively different from the latter insofar as it is DEFINED by a set of beliefs or practices, while beliefs and practices are irrelevant with respect to the latter. So again, you're just confusing your categories, and happened to choose as an example an extremely complicated category -- "Jewishness" -- that is perhaps without parallel.
"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!!"
No, that was not part of my argument. I was arguing against the blithe identification of race and gender categories with the homosexuial category. As I have shown, they are qualitatively different. To demonstrate the contrary, you would have to present a propostion of the form, "Subject S is race R [or gender G] and neither possesses desire D nor engages in act A" that contains a contradiction (as the proposition, "S is a homosexual, and neither possesses any desire to engage in homosexual activity nor engages in homosexual acts" is contradictory).
Renzo at 9:06PM on May 19th 2008
64. "Seems like everyone misses your points. I wonder which end the problem is on."
Not everyone, Ryan. But if the 'problem' is on my side, show it, don't assert it. And in conversations where subtle distinctions are at play, it's quite common for points to be missed. But perhaps that's a point you haven't been able to get yet.
Renzo at 9:10PM on May 19th 2008
65. "I was arguing against the blithe identification of race and gender categories with the homosexual category. As I have shown, they are qualitatively different.
Renzo at 9:06PM on May 19th 2008"
Renzo, I refer you to Keith's post earlier:
"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"
brandon at 9:10PM on May 19th 2008
66. From the other blog:
"Preteristvision: No. the marriage contract is just fine, thanks. If you want the state to create life-long "friendship contracts" or "attraction contracts" (all punishable by law), then get a majority of people on board and do so and vote for laws that make it so."
Preteristvision,
I've been wanting to talk to you since I started reading your distorted interpretations of Marraige, the Constitutiona and God's word.
You're a lot like Jane. You're the kind of person who will cite the very few scriptures of the Bible that condemns Gay "Acts".
Now let's get this straight. There is nothing in the Bible that says two people of the same sex cannot marry. You can't find it, and you never will.
Jane,
If the laws of the land are all based from the cult interpretations you believe in, then you will be descriminating against EVERYONE that believes different from your sect.
In the USA, this can't happen. This is why Gay Marraige will be overturned in every state. It is a law that was created from an interpretation of a selected belief system.
As a Christian, I know my role in this world. Unfortunately, people like you who have been unbelievably indoctrinated with false interpretations think that Religion should control politics.
You all are dangerous, and you all are exactly what Jesus warned us of. Your using HIS name to do damage. If you only understood his message. And if you did, you would never spew the crap that you do.
Everyone Else.
Greetings from Abuja. Had to come into the capital for a meeting today, and decided to take advantage of the crappy internet connection. I wanted to get on earlier, but passed out.
Heading back to the Delta in about 8 hours.
I'm hoping the connection stays on so I can blog for a little while.
Botts at 9:21PM on May 19th 2008
67. Renzo, I refer you to Keith's post earlier:
"A good place to start would be to stop finding excuses whereby discrimination becomes acceptable."
Brandon, but if, as I have shown, the argument on which the 'discrimination' charge rests is not sound, then your reference to Keith's words is simply begging the question.
Keep in mind that I've yet to say what I personally think about gay marriage; I'm just criticizing the poor arguments against restrictions on it. Personally, I haven't made up my mind; I'm very much conflicted. (It has NOTHING to do with homophobia, so don't even bring up the favorite "I can't think of anything so I'll call you names" response -- or, rather, non-response.) But I do know that the supposed refutations of Dinesh's arguments are ridiculous, and that no one has been able to show that my argument is flawed.
Renzo at 9:22PM on May 19th 2008
68. Assume, for the sake of argument, that the whole "slippery slope" argument is valid. SO WHAT?! If some guy wants to marry his sister, why should I give a flying crap?! Perhaps they should be required not to produce biological children (for obvious reasons), but let people do what they want if it isn't affecting anyone else. As for polygamy, I don't think you should legally be able to marry more than one person at a time, but I've long believed that people who practice plural marriage should not be prosecuted for it. Your beliefs, your business, I say! Me, I am a heterosexual Christian woman, and I intend to marry one man (outside my family...ha ha)someday. But I don't really care what you do if you don't hurt someone else. (This is not to say I condone incestuous or polygamous relationships; I personally believe they are wrong, but this is a free, non-theocratic country.) As for gay people, they are born that way, so their options are essentially to remain celibate for life or to have a partner of the same sex, and they shouldn't be denied the right to commit to someone they love. (By the way, love the "doesn't mean everyone is going to start banging sheep" statement, J.)
Cecilia at 9:32PM on May 19th 2008
69. Cecilia:
If a guy wants to marry his sister, why should you give a crap??
Well, one of the reasons why is because it causes birth defects. Children do not ask to be here and we--as a society--have a responsibility to protect those whom cannot protect themsleves.
Keith J. Mohrhoff at 6:09PM on May 26th 2008
70. Hey Botts! Great to see you! Fly and stay safe, man, I still got a cheese steak voucher for you.
T.Brough at 10:02PM on May 19th 2008
71. I am off to Chicago for a book signing and Texas for a film role. Everyone have a great week.
T.Brough at 10:23PM on May 19th 2008
72. I like your opinion. Keep up the good work.
??? at 10:46PM on May 19th 2008
73. #69 Keith: Although incest can lead to birth defects, it is rare that they would occur in first generation couplings. The birth defects come about if both the mating relatives are carriers for a recessive gene that results in the given disease/defect. So, the more closely related people are to one another, and the more they breed, the greater the chance that such rare alleles (if either or both parents have them) will result in a full-fledged version of that disease which would not happen if in the greater genetic diversity of the general population. But, of course, there is no guarantee that such a thing would occur in short term. Over enough generations, however, things could get ugly...but, once again, it is not guaranteed.
Asylum Seeker at 11:08PM on May 19th 2008
74. "The state can grant civil union, as in, the ability for people to share financial and state recognized benefits. Calling this marriage is heresy and constitutes a severe infringement on the rights to exercise free religion, mainly that the state has taken to define marriage outside of religious construct. The state is enforcing a marriage clause that they do not have a right to change because it is strictly developed and nurtured by the church." mincpa
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First of all, the word "heresy" has NO place in a discussion of legal rights. There is no such thing. The word refers to slight against some religious insitution, and who the hell cares????
Second of all, an infringement on the right to exercise free religion?????? What the fuck is this idiot talking about? YOU CAN EXERCISE WHATEVER RELIGIOUS PROCEDURES THAT YOU WANT TO.
A civil union = marriage.
And if the gay couple desires and finds a pastor or reverend to officiate at their marriage, that is fine for them. How asinine to claim that this affects marriage for anyone else.
That pig just don't fly. If you don't like having gay people around, then move to Iran. It's rumored that there aren't any gays there. (hah.)
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Keith is right on with his jewish example. Appearance has nothing to do with this discrimination.
I am an atheist, but ethnically I am a jew. If I am discriminated against because I am a jew, it is no different because I am not a practicing jew, an atheist.
Christians see homosexuality as a sin and immoral.
Who the fuck cares? It's not to them, nor to many of us who sympathize with their discrimination.
Linda at 11:15PM on May 19th 2008
75. You had me and my full attention UNTIL the blatant pandering and LIE you told in line 11 of your article. UTTERLY disgusting! Do NOT for one moment, one nano-second more, think for a second that WOMEN were not mistreated equally as poorly as blacks. How dare you not remember who the FIRST house slave was! Who had their heads bashed and dragged into caves? WOMEN. Who from the dawn of time were looked upon as PROPERTY? WOMEN! Who marched in the streets, made signs, fought for equal rights to VOTE and then were bashed by men in the streets, bashed by their spouses at home for"embarrassing them in public", bashed in the police stations, bashed in the workhouses for prisioners, sent to mental instutions to be bashed and medicated, called HYSTERICAL (only because their bodies could carry a child), excommunicated by "normal society"...all in the name of EQUALITY for all persons to vote...WOMEN!! And who did the right to vote go to after white males? BLACK males! Not one woman. Not one. So, Rev. Wright can stick that in his pulpit and smoke it the next time he announces that Hillary has never been called that horrible N word. Barack has never been called the horrible B or C words, now has he. Every black male and every woman of every color have those women...those grand white women who took bashings and still take bashings...to thank til the end of time! I do!
Dee at 11:23PM on May 19th 2008