Response to Thomas Sowell
Response to Thomas Sowell article
Now that a number of state courts have refused to redefine marriage to include same-sex unions, cries of “discrimination” are being heard.
The “equal protection of the laws” provided by the Constitution of the United States applies to people, not actions. Laws exist precisely in order to discriminate between different kinds of actions.
When the law permits automobiles to drive on highways but forbids bicycles from doing the same, that is not discrimination against people. A cyclist who gets off his bicycle and gets into a car can drive on the highway just like anyone else.
Mr. Sowell, there are good, safety-related reasons for banning bicycles from highways - reasons that do not apply to gay marriage. In a free society, laws that discriminate without good reason should be overturned - even those that discriminate against actions.
In a free society, vast numbers of things are neither forbidden nor facilitated. They are considered to be none of the law’s business.
Sounds a lot like something that should apply to marital choices among consenting adults.
Homosexuals were on their strongest ground when they said that the law had no business interfering with relations between consenting adults. Now they want the law to put a seal of approval on their behavior. But no one is entitled to anyone else’s approval.
Good. Then you apparently understand that traditional, heterosexual couples are also not entitled to anyone else’s approval. The reasonable conclusion is that the state should either get out of the business of approving relationships, or it should do so in a manner that does not discriminate without good reason.
Why is marriage considered to be any of the law’s business in the first place? Because the state asserts an interest in the outcomes of certain unions, separate from and independent of the interests of the parties themselves.
That doesn’t really answer the question you just asked. Merely asserting an interest does not make the interest appropriate. So the question still remains - why is marriage any of the law’s business?
In the absence of the institution of marriage, the individuals could arrange their relationship whatever way they wanted to, making it temporary or permanent, and sharing their worldly belongings in whatever way they chose.
Marriage means that the government steps in, limiting or even prescribing various aspects of their relations with each other — and still more their relationship with whatever children may result from their union.
In other words, marriage imposes legal restrictions, taking away rights that individuals might otherwise have. Yet “gay marriage” advocates depict marriage as an expansion of rights to which they are entitled.
Whether you frame it as rights or restrictions, or some combination of both, what matters is that gay and lesbian couples are at least as entitled to them as heterosexual couples.
They argue against a “ban on gay marriage” but marriage has for centuries meant a union of a man and a woman. There is no gay marriage to ban.
So what? That just means discrimination was built into the word throughout those centuries. How much of that history was characterized by a high tolerance for independent thinking, questioning authority, or challenging tradition? Was there ever a significant period during which anyone who might be prone to disagreeing with that definition could openly question or challenge it without risking ostracism, at the very least? With those questions in mind, would you like to go on record stating that longevity always equates to merit? If not, then whaddaya say we remove that discrimination from the word, since there is no good reason for it - especially as it relates to making laws?
Analogies with bans against interracial marriage are bogus. Race is not part of the definition of marriage. A ban on interracial marriage is a ban on the same actions otherwise permitted because of the race of the particular people involved. It is a discrimination against people, not actions.
It’s always troubling to see someone who should know better relying on semantics to defend an otherwise indefensible viewpoint. Out of curiosity, if race had traditionally been part of the definition of “marriage”, would you be relying on the same semantic argument to support limiting the legal option of marriage to same-race couples?
And for future reference, merely citing one difference between two things does not automatically preclude them from being analogous, if they have something else in common that is relevant to the issue being discussed. And what makes a ban on gay marriage analagous to a ban on interracial marriage is that both reflect unwarranted discrimination, based largely on poorly founded prejudices deeply rooted in tradition, and supported by the majority.
Justice Oliver Wendell Holmes said that the life of the law has not been logic but experience. Vast numbers of laws have accumulated and evolved over the centuries, based on experience with male-female unions.
And throughout most of those centuries, that experience was accompanied by an overwhelming bias against homosexuality. It is highly unlikely that those who made the laws were exempt from that bias. Let’s not be too quick to credit them with infallible judgment.
There is no reason why all those laws should be transferred willy-nilly to a different union, one with no inherent tendency to produce children nor the inherent asymmetries of relationships between people of different sexes.
In the first place, it wouldn’t be transferring those laws so much as expanding them to include a relatively small percentage of the population that had previously been excluded for no good reason. Additionally, it isn’t “willy-nilly” to change laws (or the definitions associated with them) in order to remove unwarranted discrimination. And unless you’re prepared to go on record clearly stating that producing and raising children is the only good reason for marriage, the capacity for producing children (or the lack of it) rings false as a justification for that discrimination.
And that stuff about “inherent asymmetries” is kind of vague, so it’s a little hard to address. But something tells me if you were to be more specific, it wouldn’t bear much scrutiny as a reason to ban gay marriage.
Despite attempts to evade these asymmetries with such fashionable phrases as “a pregnant couple” or references to “spouses” rather than husbands and wives, these asymmetries take many forms and have many repercussions, which laws attempt to deal with on the basis of experience, rather than theories or rhetoric.
That’s still pretty vague. You don’t offer a single example of how all that experience means that allowing couples without those asymmetries to marry would be harmful to others (offended sensibilities don’t count). If you had any such examples, omitting them is a glaring oversight. And if you don’t, all you’re left with is a pretty empty argument.
Wives, for example, typically invest in the family by restricting their own workforce participation, if only long enough to take care of small children. Studies show such differences still persisting in this liberated age, and even among women and men with postgraduate degrees from Harvard and Yale.
In the absence of marriage laws, a husband could dump his wife at will and she could lose decades of investment in their relationship. Marriage laws seek to recoup some of that investment for her through alimony when divorce occurs.
Sounds like a good reason for a pre-nup. The state could solve all these problems by simply requiring that all married couples, gay or straight, spell out the terms of their marriage in a legal contract if they want its sanction and/or protection. These are not insurmountable problems.
Those who think of women and men in the abstract consider it right that ex-husbands should be as entitled to alimony as ex-wives. But what are these ex-husbands being compensated for?
This seems meant for an entirely different discussion, as is often the case with anti-gay marriage rhetoric. Uncertainty about alimony issues is no justification for the government playing favorites in its approval of relationships among consenting adults. Again, pre-nup!
And why should any of this experience apply to same-sex unions, where there are not the same inherent asymmetries nor the same tendency to produce children?
Because distinctions based on “inherent asymmetries” are not a good reason for discrimination, and neither is the inability to produce children. You really couldn’t work this out for yourself?
This kind of nonsense is to be expected from guys like James Dobson. I expected better from you.