In the last post I tried to explain what it is about discrimination that bothers me. I find the prohibition against SSM extremely unjust because of its discrimination on the basis of sex. This is apart from the positive reasons I support SSM as simply good public policy, but the injustice I see drives me to push for SSM more than other mere policy changes I advocate. It is also why I see this as more than a mere policy disagreement to be decided by the legislature. In my next post (whenever that may be) I will look at arguments some make for why the discrimination is justified. In this post, however, I want to deal with those arguments that seek to avoid justifying the discrimination by claiming it just isn't discrimination (as least not based on sex) because....
...men and women are treated equally. Neither is allowed to marry a person of the same sex. The first problem with this argument is it focuses on the group and not the individual. As an individual, a person is treated quite differently on the account of his or her sex. Where a particular marriage would be validated (or license granted) if the person were male, that would not happen if the person were female. Just because another individual finds himself facing a similar problem--the marriage would be accepted if only he were a woman--does not eliminate the discrimination. It's a case of two wrongs don't make a right. A person is being treated differently because of his or sex. (Arguments that the sex of the person make the situation substantially different so as to justify the disparate treatment are valid attempts to justify the discrimination which I will deal with in a later post). We have the government determining that it is acceptable for a man to marry a woman, but not for a woman to do the same thing. We might consider other circumstances where this dual discrimination could arise. In terms of marriage it already has when blacks were forbidden from marrying whites, but whites were also forbidden from marrying blacks. One could imagine a hypothetical in which people were required to marry within their own religion. Or perhaps for the sake of diversity people were required to marry a person of a different race. Such acts would still be acts of discrimination. Even in the gender scenario we can imagine a similar hypothetical. Suppose we identified a certain job like nurse as a female job, and we identified a certain job like doctor as a male job. We then said nobody is allowed to take a job of the opposite gender. In fact, for a long time gender discrimination has been justified on just such grounds. Men and women are being treated equally it was said, just differently. It was argued that there are merely seperate but equal spheres for men and for women. In all of these cases I still find the discrimination troubling unless it can be justified in some way.
...marriage is by definition a man and a woman. I tried to explain in an earlier post why I find the argument by definition so unpersuasive. The definition is a legal one and the government is responsible for the definition. So if it is the definition that unjustly discriminates, then I find the government action in maintaining the definition to be unjust. The definition of governor once included a gender requirement (as indicated by the "or" suffix and the separate word "governess" for a female) and yet that by no means justifies keeping women from becoming the governor of a state. Pointing out that the discrimination occurs in the definition brings us no further towards discovering whether or not it is justified.
...it is not intended to keep women subservient. Discrimination still troubles me even if the motives are pure. Certainly I would object if somebody were trying to harm a group that I do not feel should be harmed, but even benign discrimination is still discrimination and may be unjust even if done with the best of intentions. The examples I gave before about prohibiting interfaith marriage because it would be better for kids or requiring interracial marriage because it promotes diversity, would also be done with good intentions and not to keep any group down. I still find them objectionable. Much of the discrimination that has been done on the basis of sex was done to protect women and children, not to hurt them. That may make them less objectionable, but they are objectionable nonetheless. If discrimination were only problematic when it harms a group, this argument might make sense. What I find most objectionable about discrimination, though, is not the harm it does to some group, but rather how it improperly treats an individual.
...it's discrimination based on behavior not on sex. The problem with this is that whether the behavior is acceptable depends on the sex of the individual actor. So we are still left with an issue of discrimination based on sex. A male and female could act the same way, say they both want to marry a woman, and yet one is allowed and the other is not. If we did not allow women to become engineers that would only discriminate against women who tried to study engineering. But that does not make it any less discrimination based on sex.
...most women don't want to marry women. As before with the engineering example, if most women did not wish to be engineers would that mean it wasn't discrimination? Of course, not. This highlights one of the things I found most troubling about discrimination, its focus on the group as opposed to the individual. The same argument, by the way, was used by those who opposed allowing blacks into certain law schools.
Later, I will look at arguments which do attempt to justify the discrimination because they feel the situaiton of a man wishing to marry anther man is substantially different than that of a woman wishing to marry another man. I disagree with such argument, as I will explain, but unlike these, they at least attempt to justify the discrimination as opposed to denying it.