In an earlier post I examined some of the reasons I find discrimination troubling. In the last post I responded to some common arguments that try to claim that the prohibition on SSM is not a case of sex discrimination. It is one thing to try to justify the discrimination, but those arguments merely ignored the discrimination and evaded the issue. Today, I will examine some arguments that deal with the issue and try to justify the discrimination. Such arguments will need to explain why the sex of the individual makes their situation so different as to justify the disparate treatment. Note it is not enough to say that gender differences are real. If that alone were enough, all gender discrimination as well as religious discrimination would be justified. Any substantive argument needs to address why these differences justify disparate treatment when it comes to marriage.
…a person cannot procreate with a person of the same sex. This certainly does make the situation different. It implies the germane characteristic, though, is the ability to impregnate or get impregnated by ones spouse. As any SSM proponent will remind you, though, even those without the ability to impregnate their spouse are still allowed to marry if they are of the correct sex. So in this case, gender is acting as an imperfect—although still fairly good—proxy for the germane characteristic. But as most SSM opponents will remind you, there are some reasons to avoid using the germane characteristic directly. So we might consider the use of a proxy, and hence the discrimination, as justified in this circumstance. That would only be the case, though, if we could justify the discrimination on the basis of the germane characteristic directly. That is, if we believed the inability to procreate justified withholding the validation of a marriage, it might make sense to use gender as an imperfect but close proxy to achieve that goal. Sure, some infertile couples may marry, but that is unavoidable because of practical considerations. I don’t believe, however, the discrimination on the basis of the ability to procreate is justified in the first place. Furthermore, I don’t believe that most who support the sex based discrimination would support it if applied to this supposedly germane characteristic directly. That is I don’t see the infertile marrying as some detriment that should be avoided if possible. I don’t see the situation of an infertile couple marrying as being so different so as to justify denying the marriage. Yes, it’s different, but the many things that an infertile marriage has in common with a potentially fertile one—not least of which is the possibility of having children through other means-- are far more important than this difference. In any case, unless one believes the direct discrimination is justified, there is no way the proxy discrimination can be justified and I suspect the motive behind the discrimination is not truly the desire to weed out infertile couples.
…a same-sex couple cannot provide both the mother and the father that a child needs. From a policy perspective I have often wondered why it is better for the children to be raised by unmarried parents of the same sex than by married parents of the same sex. Those are issues that I have dealt with elsewhere, and will continue to address elsewhere. For now, I want to focus merely on the discrimination aspects. I see this situation as having much in common with other circumstances in which parents marry. They cannot provide everything for their child, but they try their best to provide as much as they can. A person who wishes to marry someone of the same sex also generally seeks to provide for their children (present or future) as much as they can. In choosing a spouse we tend to think of what sort of parent that person would be, but we don’t forbid others from marriage simply because the chosen spouse is not able to provide everything we would want a child to have.
On a deeper level, though, there is something that troubles me even more about this argument. Essentially it says that a man cannot be a mother and a woman cannot be a father. Well certainly by definition that is true, but as we have noted we must move beyond the definition in matters of discrimination. What is it exactly that we are saying a man can provide for a child that a woman cannot (or vice-versa)? I have heard three answers to that question, although I am certainly receptive to more.
The first answer I have heard is a general one that a child relates to his or her father differently than to a mother. This highlights, however, an aspect of discrimination I find troubling. We relate to all individuals differently. A child relates to his or her parents as individuals and not as some representative of a larger group. We should be focusing on the individual things a person can provide for his or her child, and not resort to generalities about how men or women behave.
The second answer I have heard is slightly more specific and points out that only a parent of the same gender can know first hand what it is like to be that gender and can relate to the unique difficulties of maturing with a particular physical body. Of course children grow up with all sorts of experiences and difficulties. Sometimes one parent can relate to it directly, sometimes both, and sometimes neither. Even when parents don’t know first hand what the experience is like, though, they can often relate in some other way. The situation of a parent not being able to relate directly to all of the experiences of a child is common to all parents, and I don’t believe it is justified to use this one particular instance to justify denying the child’s parents the ability to marry one another.
The final answer I have heard is that only a parent of a certain gender can role model that gender. This highlights what I think I find most troubling about the discrimination. First of all, as in the last case, parents relate or don’t relate to the child on so many levels that to focus on this difference strikes me as wrong. We don’t prohibit a marriage because it lacks a parent who can model other roles. Only gender roles are so necessary so as to require this distinction. Furthermore, what use is it to model a role unless a person is going to model it well? I don’t know what "male" qualities a father is supposed to be model, but I have been told they include duty, honor, and responsibility. Aren’t these virtues a woman can model as well? Just the idea that there are gender roles that need to be modeled I find troubling. I don’t think our genders should determine our roles and that is precisely what I find most difficult about gender discrimination. It implies there are such roles and I would rather leave it to the individual to determine what significance gender will play in his or her life decisions.
Some have hinted that I might be setting the standards too high for what is necessary to justify the discrimination. Well, then I have high standards. I would note, though, that what passes for justification of the sex discrimination here, might be used to justify just about any instance of sex discrimination. What if the government decided that a child not only needs a mother and a father, but a mother who stays home with the child? It might seek to prohibit women from the workplace (for the sake of the children, of course). What troubles me in that case is the same as what troubles me in this instance of sex discrimination. The government should not let gender determine our roles. We should allow the parent to decide what is best for her child, which in an individual case might involve the mother working (or the mother marrying a woman). And we should recognize that the woman who wants to work to provide for her child or the woman who wants to marry her beloved spouse to protect her family is in essentially the same situation as the man who desires to do the same things.