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 6 of 34)
76.
Linda, I care.
Linda at 11:31PM on May 19th 2008
77. Research shows that we don't quite know why people are sexually attracted to others. (Other than biological triggers) However, the psychology of sex is very complex. However, no one is "born gay." It is understandable that the "GLBT community" wishes to push such things because it takes the argument out of the mouths of those who would demean them. However, it is a false statement. By that same token of course, no one is "born straight." One day, I hope that we move past these confusing and devisive terms.
That notwithstanding, I find it refreshing to know that the rights of a minority of people are not being abridged by others who wish to impose their religious views on others. As a Christian, (and I am one, though I do not believe in restricting same sex marriage) it is permisable for one to hold certain views about any one subject, but whether they are prudent to become law is entirely another.
Ryuuku at 12:07AM on May 20th 2008
78. I once took a career planning course once, and one of the counselors made an interesting point...He said,"Behind every bad thing we do, we value something"...For example, everyone sees an adulterer as a bad woman...what is this woman valuing behind cheating with another man? Is she looking for honor? love? what does she value?...I think we can apply this to gay marriage too...What is it that two gay people are valuing in the idea behind wanting their marriages legalized and recognized? Isn't it to secure their partner's welfare in the event that something should happen to one of them? Is this what they are asking for?
Bridget at 3:15AM on May 20th 2008
79. Ryuuku,I would imagine the initial attraction would be that someone like you knows better how to please you, don't you?
Bridget at 3:21AM on May 20th 2008
80. I am trying to look BEHIND why someone does what they do...I think I understand sin a little bit better that way
Bridget at 3:24AM on May 20th 2008
81. I'm so tired of this strawman. "Gays are different from blacks because you can't change the color of your skin, but being gay is a choice."
What I am really tired of is that it is, for some unknowable reason, a strawman with legs. That is, I hear it often on talk shows, on this blog, from acquaintances, in trying to draw a bright line between allowing marriages between people of difference races and not allowing gay marriages. I think that some people must actually have been convinced by this argument (which sounds Rovian to me, but I think preceded him)!
The fact is that the two "rights" are exactly equivalent! Blacks and whites cannot help the color of their skin, but they CAN choose who they marry! So the argument that miscegenation laws were wrong, but discriminating against allowing two men or two women to marry is right, just doesn't hold up. People try to compare the whole of the civil rights movement (the right to an equal job with equal pay, the right to an equal education, the right to live in whatever neighborhood one chooses, the right to marry whomever one wishes to) to this ONE ASPECT of the gay rights movement, and that, my friends, is a classic strawman argument.
The truth is that choosing to marry a person of another color is exactly like choosing to marry someone of another gender -- OR NOT.
So I should be free to choose to marry a white man, or a black man, or a Catholic man, or a Jewish man, and I should also be free to choose to marry a woman if that is how I'm wired and -- presumably -- how God (if he exists, and is the interventionist God that many of you presume him to be) made me.
People. Find something more worthy of your time and attention, like, oh I dunno, helping your neighbor who is about to lose his house stay out of foreclosure. I seem to remember their being something in the Bible about helping your neighbor... ?
Xenobia at 3:48AM on May 20th 2008
82. 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
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I live in the U.S., was raised Christian (mostly Methodist and non-denominational) and I have read the entire Bible to understand what it says. If you don't believe me, go read it yourself. Yes, we live in modern times and the definition of marriage has changed, in the eyes of most people.
However, the people railing against gay marriage and upholding the "sanctity" of Christian marriage often cite the Bible as their source, and moan about how we should all follow the Biblical guidelines for marriage. I'm merely pointing out that if they want to fundamentally follow the original Biblical teachings on marriage, that's what they need to do.
By the way, after reading the entirety of the Bible, I am no longer Christian. I don't believe that a loving God would condemn millions of people to eternal suffering because of believing a different religion or committing a "sin" like being gay, especially when there is no material proof that they should believe any certain way. I do believe in God, just not the Christian idea of God. I do not even kill insects, so the idea of God killing thousands and thousand of people for what a few of their men did is an abhorrent idea to me.
Emmy at 5:31AM on May 20th 2008
83. Asylum Seeker: I am sorry but persons too closely related need not be carriers of a defective gene in order to have a birth defect in their offspring. In the genome, there is something called a 'discriminator' (ironic, I know) that decides how much of which nucleo-peptides to use for what protein building function. (I.e., how big your nose should be, skin pigment, color of eyes and hair, etc.) The point is, when the DNA and RNA strands carry distinct genetic markers that set them apart, it is easier for these discriminators to do their job. When they are too identical, you end up with failure of the DNA sequence leading to problems like hemophilia. Hemophilia, was sometimes referred to as ‘the blue-blood disease’ because it was common among royalty and their descendants because often, in order to keep the royal or aristocratic bloodlines ‘pure’ they would marry a first or second cousin. Too much of that in one family and you might as well have brother and sister marriages. These genetic failures are similar to the problems you would have if you had a given population that for some reason had chosen to reproduce solely through cloning. Eventually, the DNA chains would break down because they are meant to have perpetual infusions of fresh DNA with each generation.
Keith J. Mohrhoff at 7:42AM on May 20th 2008
84. Bridget asked: "What is it that two gay people are valuing in the idea behind wanting their marriages legalized and recognized? Isn't it to secure their partner's welfare in the event that something should happen to one of them? Is this what they are asking for?"
What they are 'asking for' is equality under the law. They want the society that beat, jailed, tortured, discriminated against and denied them to say that their love for each other can be just as 'real' as that of any two heterosexuals. They want to be validated and valued as human beings within that society.
Keith J. Mohrhoff at 8:00AM on May 20th 2008
85. Just more food for thought on what marriage is and isn't.
In other parts of the world, the "one man/one woman thing isn't as rigid as here. For example, in Senegal, 47 percent of marriages are polygamous.
Also, "Since 2001, five nations have made same-sex marriage legal, namely the Netherlands, Belgium, Spain, Canada, and South Africa."
http://en.wikipedia.org/wiki/Marriage
In 2004, the American Antropological Institute released the following statemnt: "The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies."
The citations for these are in the Wiki article.
brandon at 8:01AM on May 20th 2008
86. The statement that blacks have suffered historical oppression that neither women or gays can match is totally moronic.
I can't speak for those of the gay persuasion, but women have suffered historical oppression for thousands of years, and female slaves have suffered much more than male slave.
Women are still slaves in many societies today, and even in America they are turned into baby factories, and domestic slaves and taught that that's all they are good for. Unfortunately, there are still women who believe it.
Patti at 8:02AM on May 20th 2008
87. Sure Patty; tell that to Oprah, or, for that matter, almost any other thinking woman in the U.S. What century are you living in?
fanmanaf1 at 8:06AM on May 20th 2008
88. Dinesh is really beind the times. Gays aren't the new blacks. Mexicans are the new blacks. Stand-up comedians have been making that kind of joke for about ten years now.
Strados at 8:09AM on May 20th 2008
89. Brandon:
While I agree with the point you are making, Senegal was a bad example. Senegal--like many parts of Africa has an atrocious infant mortality rate. As a result, the only way to maintain a viable population is through polygamy. You have to have as many as you can, start having them as young as you can because children there only have a 50% chance of living past age 6.
Keith J. Mohrhoff at 9:07AM on May 20th 2008
90. Patti:
The kind of 'enslavement' is self-imposed by that persons lack of belief in their own self. While this is tragic, 'responsibility' begins with the individual realizing their self-worth and bringing it to the table in terms of pursuing education, career, etc. In American society, there are plenty of role models for young women (both negative and positive) to realize that they need not be 'baby factories' 'sex-objects' or live-in 'domestics'.
'Real' discrimination is imposed upon a person in that in spite of their achievements, they are denied the success or recognition that would otherwise be afforded them.
Keith J. Mohrhoff at 8:28AM on May 20th 2008