Friday, February 25, 2005

Values-Based Debate

I've gotten some great emails and some intriguing comments on my earlier post regarding Bush's stance on the FMA. I want to write one, long, uber-post explaining my position on this issue and why I think it is a moral imperative that America grant marriage equality to gays.

I. The Morals Problem
The most common attack on gay marriage is that it is "immoral." The problem with that statement is that it is an entirely empty term. I have no idea what "moral" means. I happen to think that equality is "moral." Clearly, others do not. Just parroting the word "moral" over and over again doesn't get us anywhere, because it is too vague. Gay marriage must succeed or fail based on something more concrete.

Generally, something can be considered moral or immoral based on whether it violates some socially accepted value. "Morality" isn't a value, it is a term that encompasses values. Preserving the family might be considered a value. Equal protection might be considered another. Liberty could be a third. Analysis of gay marriage must begin with an examination of how it impacts into specific social values. At that point, we can begin a comparison and start weighing the benefits versus the harms.

II. Protecting the Family
The refrain one continuously hears from the religious right (usually juxtaposed next to "morals") is that they are protecting the family. Stable, secure families are undoubtedly a social value, so that strikes me as a good place to start. So the first question we can ask is: Do gay marriages help or harm families?

At no time has anyone ever pointed me to any evidence, statistical or analytical, that homosexual marriages have caused any harm whatsoever to heterosexual families. It does not threaten the benefits accorded to married couples. It does not signify a degrading of the term--unless one feels that homosexual participate in any institution automatically degrades it. Simply put, heterosexual families are not impacted in any material way by the presence of homosexual married couples. The net negative here is zero.

On the positive side of the ledger, homosexual marriage provides the same benefits to said couples, and their families, that heterosexual marriage does. It affords social legitimacy, provides standardized and streamlined mechanisms for allocating benefits, and grants stability to any children that the family may be raising. I would add another issue as well: the existence of legal restrictions against homosexuals as homosexuals legitimizes their subordinate status. Especially in schoolyard environments which are so sensitive to the prevailing social winds, this has the potential for severe harm to the children of homosexual children (see "anti-subordination" below).

III. Equal Protection
Another value we hold dear in society is equal protection of the law. Indeed, some might argue that this is the paramount value upon which all others are based. The reason that democracies cannot willy-nilly oppress minorities is that any law passed by the legislature must apply equally to the most and least powerful among us. Hence, laws that either single out one group for negative (or positive) treatment must have at least some rational basis in law. The bar is raised to strict scrutiny when the group in question is a "discrete and insular minority," or has been the past target of animus and discrimination. Homosexuals, needless to say, fall in both categories.

So now we turn to whether the prohibition on gay marriage violates the equal protection of the laws. The answer is clearly in the affirmative.

The most obvious parallel is to the prohibitions on inter-racial marriage, held unconstitutional in Loving v. Virginia. The equal-protection violation in that case was clear: If White Man A married White Women B, we had a legal marriage; but if White Man A married Black Women C, then we had a crime. Since the only change was in the race of the party, it clearly was a case of racial discrimination.

Defenders of marriage discrimination rejoin that there is no similar violation here because all men--hetero- and homosexual--are equally barred from marrying other men (and of course, the same applies to women). First of all, I think that is a pretty skewed perception of what marriage means. The right to marry means little if it does not include the right to marry one someone of your choice. Heterosexuals get that choice, homosexuals do not. Once again, marriage is not just about giving two people the socially sanctioned right to have procreative sex. If that was the case, we'd simply pair folks off randomly and assign them to have children. The beauty in marriage lies in two persons consciously choosing to spend the rest of their life together, as a family, often with children. However, even if you don't buy that, the above analogy is illustrative on why marriage discrimination violates equal protection. Let us recast it in terms of the debate at hand. Male A marries Female B, valid marriage. Male A marries Male C, invalid marriage. In this case, the only difference is in the sex of the party, which is also not a valid reason to discriminate under the constitution. The equal protection violation remains.

There are other equal protection shortcomings inherent to the anti-gay marriage case as well. The most prominent is that defenders of marriage discrimination make no effort to apply their logic to similarly situated persons. As I wrote in my analysis of the 11th Circuit Court of Appeals case Lofton v. Department of Children and Family Services:
The vast majority of the state's claims of rationale falter because it makes no effort to apply the same standards to similarly situated people (for example, its claim that it wants children in houses with a mother and a father is undercut by the fact that it allows single people to adopt). The only analysis it gives that arguably only applies to Homosexual couples is that the state might want its children to be "normalized" and that it would be weird and possibly harmful for predominately heterosexual children to be raised by homosexual parents who are implied to be outside the mainstream. Even beyond the substantial psychological evidence which shows that any harm to children raised by homosexual parents is fictive...the flaws in this argument are transparent. First, as the dissent aptly notes, it gives no guidance on how to deal with homosexual children who presumably need a "similar" parent figure as much as heterosexual parent does. Second, it doesn't apply the same standard to other groups that could be termed "outside the mainstream" (like inter-racial couples).

Virtually all arguments against homosexual marriage come apart under this standard. If the state is seeking to encourage procreation, it shouldn't be giving benefits to non-procreative couples. If the state is worried about social stigmatization of children, then it should be precluded from allowing inter-racial couples to marry. If the state wants parents who will be good role models, then it should prevent anybody but Doctors and Lawyers from marrying. There simply isn't a shred of evidence that can be used to prevent homosexual marriage that could not also be used to strip away rights from people whom society overwhelmingly agrees should be protected. Call this the inverted slippery slope: If we affirm that homosexuals can be discriminated against under law, then there are any number of discriminatory actions we'd have to take against other groups in order to satisfy the dictates of equal protection. Which conveniently moves me to...

IV. The Slippery Slope
The slippery slope argument is another popular one to make. It basically says "even if homosexual marriage isn't that bad, it will invariably lead to X which IS horrible, so we can't set down that path." Now, as I demonstrated above, the slippery slope goes both ways so it really isn't a valid argument. However, if we deconstruct the logic behind "slippery slope," we can see how it falters.

The reason that the "X" above is presumed to be a persuasive reason not to allow gay marriage is because X is some very bad thing. Gay marriage isn't a very bad thing--if it was, we wouldn't even need to raise the comparison to X in the first place. We could simply explain all the bad things associated with gay marriage. However, is X really is that bad, it should not be that difficult to figure what makes it bad when homosexual marriage is not. Take bestiality, a common marker (thank you Senator Santorum!) that the gay marriage slippery slope is supposed to take us past. What makes bestiality bad when gay marriage is not? Animals, of course, cannot consent, while gay couples can. Since we don't allow entities to enter into relationships without giving consent (which implies the capacity to give it), bestiality can be prohibited when homosexual marriage is not. Another example is incest. Here the problem is in harm to any child formed from the relation. Children of incestuous relations are at a statistically far higher risk to any number of genetic diseases and defects. It is protecting these potential children from harm that justifies anti-Incest legislation; clearly this also does not bear any relevancy to homosexual marriage either (incidentally, we can prohibit homosexual incest as well based on equal protection arguments--it would be wrong to grant homosexual couples a right (incest) not granted to heterosexual couples). The slippery slope can be stopped rather easily.

V. Anti-Subordination
It is generally agreed that the state should not subordinate certain groups, labeling them as subhuman and unworthy of basic respect. The problem with codified discrimination is that it is stigmatizing. Law is seen by society as a reflection of reality--those that society chooses to stigmatize via the allocation of legal sanction are presumed to deserve their reduced status. This process of stigmatization can rapidly spiral out of control; even if we want to limit the stigma only to a specific aspect (in this case, that Gays shouldn't be allowed to marry), the stigma has a tendency to reproduce itself as a general proof of inferiority. Ernest Goffman elaborates:
The attitudes we normals have toward a person with a stigma, and the actions we take in regard to him, are well known...[W]e believe the person with a stigma is not quite human...We construct a stigma-theory, an ideology to explain his inferiority and account for the danger he represents...imput[ing] a wide range of imperfections on the basis of the original one...

Persons who notice that some persons are not accorded the same respect as others will condition themselves to see the disrespected person in that light. A man who grows up around slaves is being told explicitly that blacks are incapable of self-rule. Implicitly, he is likely to construct broader theories of black inferiority: Blacks are stupid, they are lazy, they are churlish, they are simpleminded, they are sexual predators. Worse yet, the sheer ubiquitousness of these social norms will likely inoculate these same values in the oppressed party--Blacks will see themselves as inferior because that is what society tells them they are. Thus, even narrow deprivations of rights reify discriminatory attitudes across the board. For homosexuals, the signal of the FMA is that they are not equal citizens, that they are something society must be afforded "protected against" under law. It is a very small leap from saying we need to protected against gay marriage, to the society claiming protection against gay sexual molestation, gay cultural abuse, or gay mental instability.

Indeed, the inoculation of discriminatory attitudes perhaps is the worst of all the harms accorded by the FMA because it precludes societal correction or change. This is because in addition to being discriminated against de jure, the stigmatized will be de facto barred from the political process. Any advocacy on behalf of the stigmatized opens the advocate to the same stigmatization, thus, the oppressed party is more likely to withdraw from political controversies so as to not provoke any further backlash. Elisabeth Noelle-Neumann terms this the "spiral of silence": as a social norm becomes more entrenched, dissenters are more likely to self-censor themselves rather than risk the repercussions that stem from challenging the dominant view. This has the effect of further entrenching that view, and a feedback loop ensues. The Supreme Court has recognized as much in its refusal to continence the endorsement of certain religious views:
Endorsement sends the message to non-adherents that they are outsiders, not favored members of the political community; and an accompanying message to adherents that they are insiders, favored members of the political community. [Lynch v. Donnelly, J. O'Connor concurring]
The harm is just as severe, indeed probably more so, when the state is specifically "endorsing" the premise that one group is to be considered legally superior to another.

VI. Liberty
America was founded on the premise of liberty. With some exceptions, it is assumed that persons can do what they like so long as it does not harm others (John Stuart Mill's famous "Harms Principle"). The law cannot, without some demonstration of harm, prevent me from putting cream in my coffee. That action does not harm society in any way, it has no impact on my neighbors, and it is totally beyond the scope of a legitimate government. If something as mundane as coffee is immune from governmental reproach, how much more protected must such a fundamental decision as marriage be! Those who would deny homosexuals the right to marry love to wax eloquent about the importance, the sheer essentiality, of the marital rites. Yet if we are prepared to declare those rites to be fundamental, to be a possession of all of mankind, then we simply have no warrant or justification to restrict marriage to those we deem worthy. The whole justification behind liberty is that every man and woman has the equal right to pursue their life as they see fit. Every time the government stands in the path of a person's life choice, it is stripping that person of their most basic right of all--the right to be. To be gay, to be straight, to be black, to be white, to be a teacher, doctor, lawyer, policeman, whomever. The right to be whatever you want to be, that is what America is founded upon.

VII. Conclusion
Allowing gay marriage fulfills many core American values. It is pro-family, prevents subordination, affirms liberty, and is in accordance with the principle of equal protection of the laws. To me, these seem like a fair cross-section of what can be reasonably be called "moral values." Weighing against those arguments we have the slippery slope and the fact that a majority of Americans are still opposed to gay marriage (IE, Democracy). The slippery slope argument falls on its own terms, as I proved above. The democratic argument is a serious one. However, our nation has never held democracy higher than the basic constitutional rights we all posses. After all,
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [West Virginia v. Barnette]
Equal protection (14th amendment) Personal Liberty (9th amendment), and non-discrimination (14th amendment) are principles deeply ingrained in our constitutional and social traditions. Our nation cannot ignore those values without ignoring the very foundations upon which our nation stands. For those reasons, the United States must extend marriage equality to homosexual citizens.


Mark said...

re slippery slope, you forgot polygamy.

Unconsumated polygamy by that seems to me the way to get around inheritance tax, marry your heirs. :)

Anonymous said...

This argument is incoherent. First it uses a slippery slope to counter the opponents' points, then it says that slippery slope arguments are wrong.

That's poor reasoning.

Also, on what basis is polygamy wrong if homosexual conduct is not? Many people would like to live with multiple spouses. On what basis would you deny them that? And how would would you do so without resorting to anti-same-sex marriage arguments?

David Schraub said...

Okay, #1 the slippery slope argument takes out 1, maybe 1.5 of the arguments I made here. I still have liberty, pro-family, and anti-subordination entirely intact. So to label the entire argument incoherent just tells me you didn't read most of the argument.

Second, you're misunderstanding the analysis behind slippery slope. The X (incest, bestiality) is bad independent of gay marriage, so the slippery slope offered makes no sense. In the "inverted slippery slope" I gave, however, I proved above that there was NO difference between the cases offered (inter-racial marriage, single parent homes) and the issue of gay marriage. So under the principles of equal protection, something has to go somewhere: either we treat gays like interracial couples (and allow them to marry), or interracial couples like gays (and prohibit them from marrying).

Third, on polygamy. A lot of feminist scholars have argued that polygamy is inherently degrading to women. I'm not sure. So you tell me: why is polygamy wrong? What makes polygamy bad, besides loads of people saying so?

Anonymous said...

all normative arguments actually revolve around a consequentialist framework....

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